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Judgment
By this Regular Second Appeal under Section 100 of the
Code of Civil Procedure, 1908 (CPC) appellants/plaintiffs impugn the
judgments of the courts below; of the Trial Court dated 9.11.2011 and
the First Appellate Court dated 14.10.2015; by which the courts below
have dismissed the suit for permanent and mandatory injunction filed
by the appellants/plaintiffs and has decreed the counter-claim of the
mother/Smt. Vidya Devi, and who was the original defendant no.1 in
the suit. Appellants/plaintiffs are the widow and children of late Sh.
Ranbir Singh and Smt. Vidya Devi was the mother of Sh. Ranbir
Singh. The suit property is Flat No. 73, Pocket G-5, Sector-16, Rohini
It is an undisputed position emerging on record that late
Sh. Ranbir Singh was the sole and exclusive owner of the suit property.
Late Sh. Ranbir Singh also admittedly died intestate. Once a Hindu
dies intestate, devolution of the estate of the Hindu will be in terms of
the provisions of the Hindu Succession Act, 1956. As per the Hindu
Succession Act besides the widow and children of the deceased Sh.
Ranbir Singh, the mother of the deceased namely Smt. Vidya
Devi/defendant no.1 is also a Class-I legal heir. Defendant no.1/Smt.
Vidya Devi therefore being a Class-I legal heir, and consequently the
suit of the appellants/plaintiffs claiming exclusive ownership rights in
the suit property was rightly dismissed and the counter-claim of the
mother of the respondent no.1/defendant no.2 was decreed by the trial
court and partition was ordered of the suit property by giving one forth
share in the suit property to each of the three appellants/plaintiffs, and
one fourth share to the mother/defendant no.1 counter-claimant/Smt.
Vidya Devi.
The first appellate court partly modified the judgment of
the trial court dated 9.11.2011 inasmuch as the mother Smt. Vidya
Devi had died intestate in the mean while, and consequently, the one
fourth share of the mother devolved in equal shares upon appellant nos.
2 and 3 as also the respondent no.1/defendant no.2 who was the son of
defendant no.1/Smt. Vidya Devi and the brother of late Sh. Ranbir
Singh. Accordingly, the first appellate court passed a preliminary
decree ordering that appellants/plaintiffs would be entitled to their one
fourth share each and that also the appellant nos. 2 and 3 will get their
shares as a legal heirs of Smt. Vidya Devi who died intestate, inasmuch
as Smt. Vidya Devi was the paternal grand-mother of the appellants
nos. 2 and 3/plaintiff nos. 2 and 3.
I therefore do not find any illegality in the judgments of
the courts below, much less arising of a substantial question of law
under Section 100 CPC, for this second appeal to be entertained
because once admittedly the property belonged exclusively to late Sh.
Ranbir Singh then in addition to the appellants/plaintiffs, the mother
Smt. Vidya Devi would be a Class-I legal heir, and therefore, entitled
to succeed to the extent of one fourth share to the suit property.
Learned counsel for the appellants/plaintiffs sought to
place reliance upon the Hindu Gains of Learning Act, 1930 to argue
that the judgments which are passed would be against the spirit of this
Act, however I really fail to understand this argument because
succession to the property of a deceased Hindu who dies intestate has
to be in accordance with the Hindu Succession Act, and, the Hindu
Gains of Learning Act will have no application to succession of a
property of a deceased Hindu after passing of the Hindu Succession
Act .
Dismissed.