RAVI SHANKAR SHARMA Vs. KALI RAM SHARMA

JUDGEMENT

(1.) 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.

(2.) 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 (The Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen Ors., 1986 AIR(SC) 1753 and Yudhister v. Ashok Kumar, 1987 AIR(SC) 558), 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 Thr. LR v. Thamma Rattamma & Ors, 1987 3 SCC 294 was misplaced since that judgment dealt with alienation of undivided coparcenery interest. Whereas in the present case, a Mitakshara coparcenery 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.

(3.) 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 . 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.