Ravi Shankar Sharma vs Kali Ram Sharma and Others

Najmi Waziri, J.—The appellant had, on a claim of hereditary rights, sought partition, possession, rendition of accounts, injunction, etc. of

certain properties which he claims were inherited by his father from his grandfather Mr. Tulsi Ram. He had claimed the suit property devolved

upon his father and him too by inheritance from his grandfather, who in turn had earlier inherited it from his father (i.e. from the appellant''s great-

grandfather). It is thus claimed that the suit property was an HUF property because of this hereditary succession of the ancestral property. The suit

was dismissed on the ground that the plaintiff had not been able to establish as to how the mere ownership of property of the grandfather Mr. Tulsi

Ram and then to his father Late Shri Kali Ram and, if at all, subsequently to him formed a part of a HUF. His suit was dismissed by the learned

Single Judge vide order dated 7th September, 2012 wherein it was noted that Mr. Tulsi Ram died on 2nd November, 1980 i.e. after the

enactment of the Hindu Succession Act, 1956. According to the legal precedents ( Commissioner of Wealth Tax, Kanpur and Others Vs.

Chander Sen and Others, and Yudhishter Vs. Ashok Kumar, ), the inheritance of property by a male Hindu from his paternal ancestors will be

treated as his self-acquired property and not as HUF property. It was not the case of the plaintiff/appellant that the grandfather was part of an

HUF which owned the suit property. The plaintiff was unable to make out a legal entitlement for himself which would require adjudication. Even

the reliance by the plaintiff on Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others, was misplaced since that judgment

dealt with alienation of undivided coparcenary interest. Whereas in the present case, a Mitakshara coparcenary had yet to be established and the

mere fact of transfer of ownership of property down the male lineage do not, ipso facto, establish that fact. The appellant has impugned the

aforesaid dismissal of his suit.

Learned counsel for the appellant reiterates emphatically the contentions raised before the learned Single Judge and again relied upon the

judgment in Thamma Venkata Subbamma (supra). He urged that since the appellant''s grandfather acquired the property before 1956, the

provisions of the Hindu Succession Act is inapplicable and that he (the appellant) was entitled to sue his father for partition, as a coparcener

member of the Hindu Undivided Family of which both were members.

This Court has considered the arguments. The law has been laid down by the Supreme Court in Chander Sen and Yudhister (supra). In the

latter case, it has been held:

This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, , 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 with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession

Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta

of his own undivided family but takes it in his individual capacity. At pages 577 to 578 (of SCC): (at p. 1760 of AIR) of the report, this Court

dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pages 924-26 as well as

Mayne''s on Hindu Law, 12th Edition pages 918-19. Shri Banerji relied on the said observations of Mayne on Hindu Law'', 12th Edn., at pages

918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the

Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High

Court. To the similar effect is the observation of learned author of Mayne''s Hindu Law, 12th Edn., page 919. In that view of the matter, it would

be difficult to hold that property which devolved on a Hindu u/s 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-�-vis his

own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his

grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee

of his father in respect of the ancestral house.

(emphasis supplied)

The appellant has not claimed or set up his case on the basis of an existing HUF apropos the suit property and the consequent devolution of

hereditary rights equivalent to that of his father. His claim is premised, but not proved, upon the act of inheritance by the father of the grandfather''s

property thus entitling him to a claim in the ""ancestral property"". Section 8 of the Hindu Succession Act, 1956 declares succession of intestate

estate. The appellant''s father became the successor by virtue of the said provision. The fundamental flaw in the appellant''s argument is that it fails

to acknowledge that the suit property was a self-acquired property by operation of law as discussed hereinabove, both when the grandfather later

when the father inherited it. The plaint was devoid of any particulars setting up a claim through an HUF. Therefore, the arguments of the appellant

are untenable.

There is a body of authority to the effect that though a family might be joint, there is no presumption that property of someone is HUF property.

Understood from this perspective, the appellant-plaintiff was under an obligation to prove in the first instance that his grandfather''s acquired the

suit property through devolution of HUF interest. He clearly did not adduce any evidence in support of such claim. Consequently, the Single

Judge''s finding that succession was to be in terms of Section 8, cannot be faulted. We find no reason to interfere with the reasoning and conclusion

arrived at by the learned Single Judge. Accordingly, the appeal is dismissed along with the applications.