W/O SH. ABHINAV JAIN v. S/O LATE SH. PAWAN KUMAR JAIN

The instant application is filed by the defendants herein under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (CPC), seeking rejection of the plaint on the ground that no cause of action is disclosed therein.

2. The present civil suit has been filed by the plaintiff against her father, Sh. Rakesh Jain arrayed as defendant no. 1 herein, and her paternal aunt, Smt. Neena Jain arrayed as defendant no. 2, seeking partition of the property bearing number C4F/196, Pankha Road, Janakpuri, New Delhi-110058 (‘suit property‟). The case set up in the plaint is that the suit property was purchased by late Sh Pawan Kumar Jain, the paternal grandfather of the plaintiff, sometime in the years 1972-1973, thereby acquiring absolute rights and title over the same. Late Sh. Pawan Kumar Jain is stated to have passed away intestate, on

26.06.1994, leaving behind his widow, late Smt. Sudarshan Jain and children, Sh. Rakesh Jain and Smt. Neena Jain as his legal heirs. Late Smt. Sudarshan Jain, the paternal grandmother of the plaintiff is also stated to have passed away intestate on 19.01.2023. The family tree of late Sh. Pawan Kumar Jain is produced below, for reference: (Grandfather) Late Sh. Pawan Kumar Jain---- Late Smt. Sudarshan Jain (Grandmother) Shri. Rakesh Jain (Defendant no.1)(Father) Smt. Neena Jain (Defendant no. 2)(Aunt) Smt. Kritika Jain (Plaintiff) Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:11.09.2025 18:15:11 2 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

3. In the plaint, the plaintiff avers that when she asked to partition the suit property, the defendants kept on avoiding on one pretext or the other, and set about trying to alienate and create third party rights in the suit property in order to deprive her of a share in the same. The plaintiff avers that she has filed the present suit in order to protect her interest in the suit property.

4. By way of the present suit, the plaintiff seeks declaration that she is entitled to 1/4th share in the suit property and for partition of the same accordingly. Apart from the aforenoted prayers, the plaintiff also seeks other ancillary reliefs. The prayer clause of the plaint is reproduced below, for reference: “a. Pass an ad-interim order restraining the defendants from creating any third-party rights in the suit property till the pendency of this present suit; b. “Pass a decree of declaration that the Plaintiff is entitled to 1/4th share in the undivided ½ share of Defendant No. 1 in the suit property being C4F/196, Pankha Road, Janakpuri, New Delhi; c. Pass a decree cancelling the relinquishment deed dated 12.08.2024 as null and void; d. pass a preliminary decree of partition of the suit property being No. C4F/196, Pankha Road, Janakpuri, New Delhi; and e. pass an order appointing a local commissioner to suggest mode of partition of the suit property by metes and bounds; and f. pass a final decree of partition delineating and separating the 1/4th share each of the Plaintiff in the undivided share of Defendant No. 1 in the suit property bearing No. C4F/196, Pankha Road, Janakpuri, New Delhi; and g. pass a decree of permanent injunction restraining the Defendant no. 1 and 2 from in any manner selling, mortgaging, transferring and/ or encumbering the suit property and/ or creating third party rights therein; and/ or h. award costs of these proceedings in favour of the Plaintiff and against the defendants; and/ or Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:11.09.2025 18:15:11 3 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV i. pass any other or further order(s) as this Hon‟ble Court deems fit and proper in the facts and circumstances of the present case.”

5. The defendants, by way of the present application under Order VII Rule 11(a) of the CPC, seek rejection of the plaint on the ground of non-disclosure of cause of action for institution of the suit.

6. Mr. Vineet Jindal, learned counsel for the defendants, submits that upon the death of the plaintiff’s grandparents, the suit property devolved solely on the defendants under Section 8 of the Hindu Succession Act, 1956, („HSA‟) and therefore, the plaintiff cannot claim to have any right over the suit property.

7. Learned counsel for the defendants submits that the plaintiff has filed the present suit only with a view to pressurise the defendants, and prays that the plaint be rejected.

8. Ms. Aparna Jain, learned counsel for the plaintiff, opposes the aforesaid submissions and contends that the suit property did not devolve on the defendants under Section 8 of the HSA, and is the ancestral property of the plaintiff having been the self-acquired property of her paternal grandfather.

9. Learned counsel for the plaintiff further submits that the plaint discloses the cause of action for the institution of the present suit, insofar as it contains averments that the defendants, with a view to deprive her of her rightful share in the suit property, are trying to create third party rights in the same.

10. I have heard learned counsel for the parties and perused the record. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:11.09.2025 18:15:11 4 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

11. The provision under Order VII Rule 11(a) of the CPC empowers the Court to reject a plaint, where it does not disclose a cause of action. Therefore, the short question that arises for consideration in the present application is whether the plaint discloses a cause of action i.e. the foundational facts to claim a relief from the Court.

12. The entire case of the plaintiff seems to premise on the assumption that the suit property is her ancestral property. Under the Mitakshara school of Hindu law, prior to the enactment of the HSA, property inherited by a person from his father, father’s father, or father’s father’s father would be ancestral property in his hands and thus, a right to a share in the same would vest in his son, the moment he is born. Reference can be made to the decision of the Supreme Court in Trijugi Narain v. Sankoo1, the relevant part of which reads thus: “8. In order to decide the question, we must first notice the difference between the joint Hindu family and coparcenary. Coparcenary, as observed in Surjit Lal Chhabda v. CIT [Surjit Lal Chhabda v. CIT, (1976) 3 SCC 142 : 1976 SCC (Tax) 252] , is a narrower body than the joint Hindu family. Under the Mitakshara Hindu Law, any property inherited by a male Hindu from his father, father's father or father's father's father is ancestral property. The male descendant who inherits the property in the above manner did not inherit the property absolutely as a separate property, but as coparcenary property.”

13. However, the enactment of the HSA brought about a drastic change in the law relating to intestate succession amongst Hindus in India. By virtue of Section 4 of the HSA, any text, rule, or 1 2019 INSC 1344 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:11.09.2025 18:15:11 5 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV interpretation of Hindu law, in respect of which provision was made in the HSA, ceased to have effect. Section 8 of the HSA, contains certain rules of succession in respect of the property of a male Hindu dying intestate. The said provision is reproduced below, for reference: “8. General rules of succession in the case of males.―The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:― (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.”

14. A perusal of the said provision indicates that in case a male Hindu dies intestate, leaving behind relatives/heirs specified in Class I of the Schedule to the HSA, his property shall devolve on the said relatives/heirs to the exclusion of all other persons. The Class I heirs specified in the Schedule are as follows: “Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre- deceased son of a pre-deceased son son of a predeceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.”

15. It is pertinent to note that grandchildren, who are not children of a predeceased child, are not included in the list of Class-I heirs. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:11.09.2025 18:15:11 6 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV Therefore, if Section 8 is correctly appreciated, the suit property cannot be deemed to have devolved on the plaintiff upon the death of her paternal grandfather, her father being alive at the time of death of the grandfather. The suit property devolved solely on the defendants and their mother. Thereafter, upon the death of the defendants’ mother, her share in the suit property devolved similarly, under Section 15 (1) (a) of the HSA, solely on the defendants. The said provision is reproduced below, for reference: “15. General rules of succession in the case of female Hindus.―(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,― (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;”

16. The Supreme Court in its judgment in Yudhister v. Ashok Kumar2 followed its decision in Commissioner of Wealth Tax, Kanpur and others v. Chander Sen and others3, and held that the property inherited by a person under Section 8 of the HSA, is taken by him in his individual capacity, and not as the karta of his family. The relevant portion of the said judgment is extracted below, for reference: “10. This question has been considered by this Court in CWT v. Chander Sen [(1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family