In CS(OS) 236/2020-DEL HC- As per rule of succession u/s 50 of Delhi Land Reforms Act, 1954, male lineal descendants take priority over other categories: Delhi HC
Justice Amit Bansal  [01-12-2022]

 

Read Order: INDU RANI @INDU RATHI v. PUSHPA & ORS 

Mansimran Kaur

New Delhi, December 2, 2022: Referring to Section 50 of the Delhi Land Reforms Act, 1954, the Delhi High Court has opined that the provisions with regard to succession of the interest of a Bhumidhar is quite different from the provisions of the Hindu Succession Act, 1956.

A Single-Judge Bench of Justice Amit Bansal allowed the  applications  instituted  on behalf of the first defendant  and the  second defendant  under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC) seeking rejection of  the plaint.The Bench was of the view that no cause of action was  established by the plaintiff in her favour which ought to be considered in trial. 

Plaintiff’s father, late Shri Ram Gopal was the owner/Bhumidar of the land situated in the revenue estate of Village Iradat Nagar, Delhi, which was an ancestral land.  Plaintiff’s father died intestate leaving behind his wife and three children, the plaintiff and her two brothers, late Shri Priyavarat Mann and Raghuvinder Mann.

On March 3,  2011, the plaintiff discovered that the land was  clandestinely mutated by her brothers in their favour soon after her father’s death, without her knowledge and consent. In 2012, the plaintiff filed a suit under Section 55 of the Delhi Land Reforms Act, before the SDM seeking partition of the suit land and an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was filed on behalf of the  second defendant in 2017 on the ground that the SDM did not have the jurisdiction to entertain the suit. 

The application of the second defendant under Order VII Rule 11 of the CPC was allowed by the SDM by an order dated  December 4, 2019.  Accordingly, the present suit was filed by the plaintiff. 

After hearing the submissions of the parties, the Court took into account Section 50 of the DLR Act. 

“A perusal of Section 50 of the DLR Act shows that the provisions with regard to succession of the interest of a Bhumidhar are quite different from the provisions of the Hindu Succession Act, 1956. As per the rule of succession under Section 50, the male lineal descendants take priority over other categories”, the Bench held while noting that in terms of Section 50 of DLR Act, the male children of the plaintiff’s father i.e. Raghvinder Mann and late Shri Priyavarat Mann would have interest in the father’s holdings to the exclusion of the plaintiff. 

Further reference was made to Section 4 of the Hindu Succession Act. In view of the same, the Court noted that the father of the plaintiff expired in 1993, when Sub-Section (2) of Section 4 of the Hindu Succession Act was still in existence. Devolution of interest in respect of the suit land would be determinable in accordance with the law prevailing at the time of the death of the father of the plaintiff. Therefore, rule of succession in terms of Section 50 of the DLR Act, would prevail in the present case and the brothers of the plaintiff would acquire interest in the Bhumidari rights of their father in the suit land. The subsequent deletion of Sub-Section (2) of Section 4 of the Hindu Succession Act would not affect the same, the Court noted. 

It was further noted by the Court the plaint filed in the present case would have to be examined to see if a case of existence of coparcenary/ coparcenary property has been set up or not. 

At this stage reliance was placed on the judgment in Surender Kumar v. Dhani Ram. The position which emerges from a reading of the aforesaid judgments is that specific pleadings had to be made in the plaint with regard to existence and/or creation of an HUF, i.e., the date on which the HUF was created, whether it was created after 1956, who were and are its coparceners and karta and in the event the HUF was created after 1956, when was the property claimed to be an HUF property, put in the common hotchpotch.

The Bench said, “While deciding an application under Order VII Rule 11 of the CPC, the issue to be considered is not whether the plaintiff has a cause of action to file the suit, but as to whether the plaint, read as a whole, has disclosed a cause of action”.

As per the High Court, in the present case, there was no cause of action which was found to exist in the plaint with respect to existence of an HUF and/or coparcenary property and the plaintiff had failed to plead a case of existence of an HUF and/or coparcenary property. 

In view of such discussion, the Bench opined that no cause of action was established by the plaintiff in her favour which ought to be considered in trial. Hence, the applications were allowed and the plaint was rejected under provisions of Order VII Rule 11 of the CPC.