V.S. Aggarwal, J.
1. Master Aditya Murgai through his mother as the guardian and next friend has filed a civil suit for partition and injunction against Ashok Murgai, defendant. Ashok Murgai is the father of the plaintiff. The plaintiff prays for partition of the suit property bearing No. 16, Rajdoot Marg, Chanakyapuri, New Delhi by metes and bounds and to restrain the defendant from transferring, alienating or parting with possession of the said property (for short the suit premises).
2. It has been pleaded that Sh. Thakur Dass, the great grandfather of the plaintiff constituted a Joint Hindu Family with his four sons. The said Joint Hindu Family apart from cash and other movable assets owned considerable agricultural land in the State of Rajasthan and Punjab. Sh. Thahkur Dass died in the year 1936 leaving behind his widow and four sons. The agricultural land and the houses in Punjab were sold and there was a partition amongst the sons and legal heirs of Thakur Dass. The sale proceeds and other assets of the joint Hindu Family were partitioned amongst the brothers including the grand father of the plaintiff. The plaintiffs grand father, Shri B.R. Murgai on severance, partition and division of the property constituted a Joint Hindu Family comprising of his four sons, one of which is the defendant. Shri B.R. Murgai, out of the sale proceeds and other assets received from common family funds purchased properties including the suit premises. A house was constructed on the plot. The defendant subsequently married the plaintiff’s mother and the plaintiff was born on 31st January, 1990. The relation between the defendant and his wife deteriorated and she was deserted. The family members, namely defendant and his brothers and other entered into a family settlement in the year 1989 giving the defendant full rights of residence to himself and has family members.
3. It has been pleaded that defendant filed a civil suit declaration and injunction levelling sundry allegations against his family members. The said suit was compromised and it was agreed that defendant shall become the sole and absolute owner of the suit premises after the demise of B.R. Murgai, namely the grand father of the plaintiff. The defendant is alleged to have filed another suit for declaration and injunction alleging that his father and brothers were not abiding by the terms of the compromise. The said suit was finally settled in the Civil Revision No. 564/97 and certain terms were agreed that the defendant is the owner of the suit premises.
4. The grievance of the plaintiff is that grand father of the plaintiff had constituted a Hindu Undivided Family out of the sale proceeds received from the alienation of the joint estate. It was therefore that the grand father of the plaintiff had constructed various properties, that the suit property is ancestral qua the plaintiff. The plaintiff along with the defendant is a coparcener in the said property and is the co owner thereto. Certain allegations even have been made about the character of the defendant and that he is an escapee from the law of the United States. It is not relevant for disposal of the interim injunction under consideration. Alleging that the property in question is ancestral and defendant is trying to sell the property, above said relief has been claimed.
5. In the written statement that has been filed the defendant has contested the suit. It is alleged that plaintiff has no locus standi to file the present suit in the present form. According to the defendant the plaintiff was born on 31st January, 1990 after the family settlement was arrived at long back. The plaintiff thus could not have any right in the property before he was born. As per the family settlement signed by all the family members the defendant had been given absolute and exclusive ownership right in the property in dispute. The said memorandum of confirmation of decree in a litigation between the defendant and his father Shri B.R. Murgai. It is denied that the defendant at any point of time had formed HUF with the plaintiff and in this view of the matter according to the defendant, the plaintiff has no right in the property nor he has any right to claim the ad interim injunction nor he has a right to claim the relief prayed.
6. During the course of pendency of the suit the plaintiff filed IA 10997/2000 seeking to restrain the defendant, his agents from selling, alienating or disposing of or creating third party interest in the suit premises. By virtue of the present order the said application is proposed to be disposed.
7. Learned counsel for the plaintiff urged that the property in suit is a Hindu Undivided Family property. The plaintiff by virtue of his birth became a co-parcener therein and therefore he has a right to seek the ad interim injunction to restrain the defendant from disposing of the property. On the contrary, the learned counsel for the defendant pointed that there has been a settlement and defendant was admitted to be the exclusive owner of the property by his father and brothers even before the plaintiff was born. The plaintiff therefore has no right, title or interest to claim that he is one of the co-parcener nor he has any right to seek an ad interim injunction.
8. In support of his claim the plaintiff relied upon the decision of the Supreme Court in the case of Kakumanu Pedasubhayya and Anr. v. Kakumanu Akkamma and Anr. . The Supreme Court therein was concerned with the question as to whether suit on behalf of coparcener would be maintainable or not. The answer provided by the Supreme Court was in the affirmative and in paragraph 8 the Supreme Court held:
“Under the Mitakhara law, the right of a coparcener to share in the joint family properties arise on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it. The view was at one time held that there could be no partition, unless all the coparceners agreed to it or until a decree was passed in a suit for partition…..”
9. Thereupon the conclusions had been drawn in paragraph 9 which reads:
“The law being thus settled as regards coparceners who are sui Jurisdiction, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has to be satisfied that the action has been instituted for his benefit. Vide the authorities cited in 2nd 57 Mad 95: (AIR 1933 Mad 890) (FB) (D) at p. 137 (of 2nd Mad): (at p. 907 of AIR). The course of the law may be said, thus far, to have had smooth run. But then came the decision in 43 Ind App 151 : (AIR 1916 PC 104) (G) which finally established that a division in status takes place when there is an unambiguous declaration by a coparcener of his intention to separate, and that the very institution of a suit for partition constituted the expression of such an intention. The question then arose how far this principle could be applied, when the suit for partition was instituted not by a major but by a minor acting through his next friend. The view was expressed that as the minor had, under the law, no volition of his own, the rule in question had no application to him. It was not, however, suggested that for that reason no suit for partition could be maintained on behalf of a minor, for such a stand would be contrary to the law as laid down in a series of decisions and must, if accepted, expose the estate of the minor to the perils of waste and spoliation by coparceners acting adversely to him. But what was said was that when a Court decide that a partition is for the benefit of a minor, there is a division brought about by such decision and not otherwise. It would follow from this that if a minor died before the Court decided the question of benefit he would have died an undivided coparcener of his family and his heirs could not continue the action.”
10. It become unnecessary for this court to ponder further with this controversy relating to the rights of the co-parcener because the cited decision must be held to be patently distinguishable. The appeal before the Supreme Court had been filed before the coming into force of the Hindu Succession Act, 1956. The matter in question therefore was totally covered by the old Hindu Mitakshara law. Position has undergone a significant change after coming into force of the Hindu Succession Act, 1956. Section 8 of the Hindu Succession Act provides the general rule of succession in case of males. In case of male Hindu dying intestate the property has to be devolved firstly upon the heirs of Class 1 of the Schedule. Father of the plaintiff would be a heir of Class 1 of the Schedule and since he is alive the plaintiff cannot claim right to succeed. The said question had been considered by the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur etc. v. Chander Sen etc. in CA Nos. 1668-70 of 1974 decided on 16th July, 1986. In paragraph 14 this controversy had been taken note of and it was held that under Section 7 of the Hindu Succession Act the property will devolve on the son in the Indian individual capacity. The said paragraph reads:-
“It is clear that under the Hindu law, the moment a son is born, he gets a share in the 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. But the question is : is the position affected by Section 8 of the Succession Act, 1956 and if so, how ? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs include the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.”
11. Similarly in the case of S.P.S Balasubramanyam v. Suruttayan Alias Andali Padayachi and Ors. 52 (1993) DLT 236 (SC) while going into the said controversy in paragraph 6 held:-
“As regards the deed of settlement executed by Chinathambi it having been found that Chinathambi got his share by way of partition decree the ancestral or coparcenary nature of property came to an end and Chinathambi became its exclusive owner. Consequently he could execute a deed of settlement in favor of his wife and children. Since Ramaswamy derived his title from the settlement deed it was valid and he could convey it interest in favor of the appellant.”
12. This court in the case if I.K. Mehra v. Wazir Chand Mehra and Ors. was also concerned with a similar situation. In the cited case the plaintiff has instituted the suit for declaration claiming 1/5th share in the suit property and partition of the suit property by metes and bounds. The plaintiff in the cited case was the son of the defendant. He had alleged besides other facts that the suit property is ancestral lease hold property in the hands of defendant No. 1 and that plaintiff and defendants 2 and 3 are coparcener with defendant No. 1. This court repealed the plea that plaintiff could seek the relief as in the present case and in paragraph 8 noted:
“Accordingly, the ownership right of Raja Ram is admitted and when Raja Ram died on 20.3.1969 1/3rd share was succeeded by Wazir Chand, the father of the plaintiff, the defendant No. 1. However, according to the plaintiff, Wazir Chand, the defendant No. 1 succeeded to the aforesaid 1/3rd property which is the suit property as Karta of the coparcenery comprising himself and his three sons, the character of the land being ancestral. The aforesaid stand taken by the plaintiff in his plaint appears to be prima facie contradictory in view of the fact that when Wazir Chand succeeded to the 1/3rd share of the property left behind by Raja Ram he succeeded to the same as successor-in-interest of his late father and therefore, under the law, prima facie, he would be deemed to be the absolute owner in respect of the said property. The aforesaid position is clear and apparent when reference is made to the provisions of the Hindu Succession Act, particularly Section 4 & 8 there of which provide for statutory succession.”
13. Thereupon conclusions were drawn in paragraph 9, which reads:-
“When the aforesaid principles of law laid down by the Supreme Court are applied to the facts of the present case, as the provision of Hindu Succession Act, 1956 are applicable to the case in hand since Raja Ram died in the year 1969, it would be the natural conclusion that the son would succeed on the death of the father as absolute owner and the property would not be deemed to be ancestral property in his hand so as to entitle the grand son to have interest in it. In Yudhishter v. Ashok Kumar, the Supreme Court has observed that it would be difficult to hold that property which devolved on a Hindu under the Hindu Succession Act, 1956 would be HUF in his hands vis-a- 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 grand father could not be said to be HUF property.”
14. The above quoted precedents clearly provide the answer to the argument of the learned counsel for the plaintiff. Not only that in the present case admittedly there was a settlement even before the plaintiff was born and in accordance with the said settlement the property in dispute fell to the share of the defendant. Thereafter there has been two litigations admittedly between the defendant, his brothers and father. In settlement were arrived at and defendant was held to be the owner of the suit premises. Keeping in view the said fact that property had devolved to the defendant even before the plaintiff was born and also that as per the law i.e. Section 8 of the Hindu Succession Act the obvious conclusion would be that property cannot be termed to be one in which the plaintiff at this stage can claim a right or thereafter an injunction thereto. Consequently prima facie it cannot be termed that plaintiff has a case to seek an ad interim injunction.
15. For these reasons the IA must fail and is dismissed. Nothing said herein should be taken as expression of opinion for final adjudication of the matter.
16. List the suit on 23rd April, 2002 for framing for issues.