RAHUL BEHL Vs. ICHAYAN BEHL

JUDGEMENT

(1.) Plaintiff Rahul Behl and others have filed this suit for deciaration against Smt. Ichayan Behl and Dr. Surendes Nath Behl on the grounds that house No R-20 Greater Kailash Part I New Delhi, was the self-acquired property of Dr. Brij Nath Behl. father of defendant No. 2 and grand-father of the plaintiffs. The plaintiffs have 1/6th share in the same. According to them the said property after the death of Dr. Brij Behl devolved on his heirs i e. three sons : Surender Nath Behl, Ravinder Behl, Sidharath Behl, his daughter Smt. Savita Luthra, his widow Smt. Ichayan Behl. After the death of Dr Brij Nath Behl the property fell into the Hindu Joint Family and became a coparcenery property. Consequently the plaintiffs acquired I/6th share as co-parceners on their birth. Defendant No. 2, father of the plaintiffs had no right to release his 1/6th share in the house which actually belonged to co-parcenary consisting of the plaintiffs and defendant No 2 Relinquishment of his 1/6th share in favour of defendant No. 1 was illegal and against law. Defendant No. 2 was Karta of the plaintiffs and bad thus no authority to dis-inherit them from this coparcenary property. The release or gift made by defendant No. 2 in favour of defendant No. 1 is void and ineffective because it was not for a pious purpose. Therefore the impugned alienation of the 1/6th share in the property in question does not bind the plaintiffs or for that matter, defendant No. 2. Plaintiff No. 1 was born on 15th January, 1977 and plaintiffs No. 2 and 3 on 24th November, 1980. They were all members of the co-parcenery on the date of the release-deed.

(2.) Defendant No. 1 put in appearance and controverted the stand taken by the plaintiffs. So far as defendant No. 2 is concerned, he was proceeded ex parte. Defendant No 1 while coniroverting the allegations of the plaint denied that the plaintiffs and defendant No. 2 as well as his wife constitute any joint Hindu family. According to her the property was self- acquired property of her husband Dr. Brij Nath Behl, father of defendant No. 2 and grand father of the plaintiffs. She denied that the l/6th share in the property was a co-parcenery property. Therefore no decree can be passed in favour of the plaintiffs.

(3.) During the pendency of this suit defendant No. 1 has moved this application (I A 1006 of 1991) under Order 7 Rule 11 of the Code of Civil Procedure. By the impugned application defendant No. 1 has challenged the suit on the ground that it does not disclose any cause of action because the property in question was a self-acquired property of deceased Dr. Brij Nath Behl. He died intestate. The self-acquired property after the death of the deceased was inherited by all six heirs under Section 8 of the Hindu Succession Act in six equal shares. The remaining five legal heirs of the deceased released and relinquished their 1/6th share in favour of defendant No. 1 which relinquishment deed was registered on 19th March, 1984. The said release and relinquishment desd has already been acted upon and implemented by the mutation of the house in question. When Dr. Brij Nath Behl died on 18th November, 1978, only plaintiff No. 1 was born. After the death of Dr. Brij Nath Bebl the property did not fall into the common pool nor becane a co-parcenery property. It was inherited in separate equal shares by the heirs in their individual capacity, therefore defendant No. 2 did not inherit property as Karia of the joint Hindu co-parcenery. After the amendment of the Hindu Succcesion Act, the property fell to the share of defendant No. 2 in his individual capacity Therefore the plaintiffs have no locus standi and hence the plaint does not disclose any cause of action and should be returned.