RAKHI GUPTA Vs. ZAHOOR AHMAD

JUDGEMENT

(1.) By this order, I shall dispose of the application filed by defendant No.1 under Order7 Rule11 of Code of Civil Procedure, 1908 seeking rejection of plaint, on the ground that the present suit filed by the plaintiff is barred by Section 6 of the Hindu Succession Act, 1956.

(2.) Addressing arguments on the present application, Mr. Varun Goswami, counsel for the defendant no.1 submits that succession in the present matter first opened on 26.11.1968, on the death of plaintiff's grandfather, Shri Bhuleshwar Nath, and reopened on 31.12.92 at the time of death of the father of the plaintiff . Counsel submits that the amended Hindu Succession Act, 1956 came into effect on 9.9.2005 and therefore, the plaintiff being the daughter of Late Shri Ram Shankar had no right to claim share in the subject property, as her right to succession reopened only on 31.12.1992. The other contention raised by the counsel is that the property in question was sold by the defendant no.2 in favour of defendant no.1 on 22.6.1998 and the said alienation and transfer of the said property in favour of defendant no.1, by defendant no.2 now cannot be reopened at the instance of the plaintiff who derived no right in the subject property as per the law as stood on that date. In support of his arguments, counsel for the defendant no.1 has placed reliance on the following judgments:

(3.) I have heard learned counsel for the parties at considerable length and given my thoughtful consideration to the arguments advanced by them. Before dealing with the aforesaid contentions raised by Counsel for the parties, it would be appropriate to give a brief conspectus of the facts involved in the present case. The plaintiff has filed the present suit for partition, rendition of accounts, declaration, possession and permanent injunction against the defendants, mainly on the allegation that plaintiff is the co-sharer to the extent of 1/7th share in the joint family property bearing nos. 9817 to 9821, Gali Zameer Wali, Nawab Ganj, Azad Market, Delhi, which she has inherited from her father late Shri Ram Shankar. It is the case of the plaintiff that earlier the grandfather of the plaintiff was the sole and absolute owner of the suit property and after his demise the father of the plaintiff became the sole and absolute owner of the subject property. It is also the case of the plaintiff that after the death of her father the plaintiff along with other legal heirs became co- owner in the subject property, having 1/7th share each in the subject property. It is also the case of the plaintiff that on 1.8.2011, she came to know that her mother, defendant no.2 has illegally sold the said ancestral property in favour of the defendant no.1 vide registered sale deed dated 22.6.1998 and GPA dated 22.6.1998. It is also the case of the plaintiff that the plaintiff was minor at the time of demise of her father as well as at the time when the sale deed dated 22.6.1998 was executed by the defendant no.2 in favour of defendant no.1, and therefore she could not take any steps to claim her right in respect of the subject property. It is also the case of the plaintiff that late Shri Ram Shankar did not execute any will either registered or unregistered in favour of any of the legal heirs and therefore her mother could not have sold the subject property, based on the alleged Will of her husband late Shri Ram Shankar. It is also the case of the plaintiff that this fact was never known to her that the subject property had already been sold by defendant no.2 in favour of defendant no.1, as she was under the impression that her mother had rented out the said premises and in return was procuring rent from the tenants and her right in the subject property remained protected. According to the plaintiff she had sent a legal notice dated 04.08.2011 to all the defendants to claim her right in respect of her 1/7th share in the subject property and despite that the defendants did not act upon the request of the plaintiff.