The property inherited under Hindu Succession Act, 1956 is separate property; claims of Joint Hindu Family ownership require a coparcenary, which was absent.

I.A. 13707/2023

1. This is an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 , [‘CPC’] filed by Defendant Nos. 1 and 3 seeking rejection of the plaint.

2. The present suit has been filed by the Plaintiff seeking partition of the property bearing no. 242-C, Hari Nagar Ashram, New Delhi – 110014 [‘suit property’] equally among all the parties to this suit. The suit property comprises of ground floor, first floor, second floor, and third floor on a plot admeasuring 173 sq. yards. The Plaintiff is also seeking a declaration that the registered Gift Deed dated 13.07.2021 qua the entire ground floor and third floor of the suit property and Will dated 28.06.2021 qua the entire first floor and second floor of the suit property, both executed by Defendant No. 1 in favour of Defendant No. 3 as null, void and inoperative.

3. The Plaintiff and Defendant Nos. 2 to 6 are siblings and children of Defendant No. 1. The Plaintiff along with Defendant Nos. 1, 3, 5, and 6 are in occupation and possession of the suit property. Defendant Nos. 2 and 4 are residing at their respective matrimonial home.

4. The family tree of the parties to the suit is as under:

CASE SET UP BY THE DEFENDANT NOS. 1 AND 3

5. Mr. Ankit Singh, learned counsel for Defendant Nos. 1 and 3, has set up the case of Defendant Nos. 1 and 3, as under: -

5.1. The suit property admeasuring 173 sq. yds. forms part of a larger property admeasuring 530 sq. yds. [‘the Plot’]. The said Plot was purchased by Sh. Horam and his brother, Sh. Pirthi Singh as co-equal owners and is therefore, their self-acquired property.

5.2. As per Section 8 of Hindu Succession Act, 1956 [‘Act of 1956’], Sh. Horam’s ½ share in the Plot devolved upon his three [3] sons and one [1] daughter. Defendant No. 1 is the son of Sh. Horam. The daughter of Sh. Horam relinquished her share in favour of her three [3] brothers.

And, by virtue of a registered Will dated 12.02.1987, Sh. Pirthi Singh’s ½ share in the Plot devolved upon his three [3] nephews [i.e., Defendant No. 1 along with his two [2] brothers].

In this manner, Defendant No. 1 and his two (2) brothers became the absolute owners of 1/3rd share each in the Plot.

5.3. The Plot was, thereafter, partitioned between Defendant No. 1 and his two (2) brothers by a Family Settlement dated 21.08.1998 and Partition Deed dated 05.12.2003. The Plot no. 242-C admeasuring 173 sq. yds. fell to the share of Defendant No. 1 and it is subject matter of the suit.

5.4. The registered Will dated 12.02.1987, Family Settlement dated 21.08.1998 and Partition Deed dated 05.12.2003 are admitted by the Plaintiff and these documents belie the contention of the Plaintiff in the plaint that the suit property is a Joint Hindu Family property.

5.5. The suit property was a self-acquired property of Late Sh. Horam and his share in the suit property devolved upon his legal heirs by way of succession as per Section 8 of Act of 1956. Accordingly, Defendant No. 1 along with his two [2] brothers inherited the share of Late Sh. Horam’s property, as their self-acquired property, with absolute ownership.

5.6. The other half portion of the Plot owned by Late Sh. Pirthi Singh devolved upon Defendant No. 1 and his brothers by registered Will dated 12.02.1987 as per Indian Succession Act, 1925 [‘Act of 1925’] and the said property cannot be termed as Joint Family property or HUF or coparcenary property. The inheritance of the said property is in the nature of a self-acquired property in the hands of Defendant No. 1.

5.7. Thus, the suit property is exclusively owned by Defendant No. 1 and therefore, the children of Defendant No. 1 are not entitled to any share in the suit property by virtue of birth.

5.8. Defendant No. 1 affirms the execution of the registered Gift Deed dated 13.07.2021 and the registered Will dated 28.06.2021; therefore, the Plaintiff has no cause of action for challenging the said documents.

5.9. In view of the aforesaid, it is evident that t