ROMESH KOHLI v. BHOJ RAJ KOHLI — 1996 DIGILAW 26 (DEL)

Manmohan Sarin, J. ( 1 ) BY this order I propose to decide the preliminary issue as to the maintainability of the suit as well as I. A. 10198/94 which is anapplication moved by the defendants 1,2 and 4 for rejection of the plaint. ( 2 ) LET me briefly recapitulate the facts:- (I) The plaintiffs in the suit are nephews and nieces of one late Sh. Faqir Chand Kohli, who was their uncle. Late Sh. Faqir Chand Kohli S/o of Sh. Harjas Rai Kohli was the owner and lessee; of the property bearing No. D-33, Gulmohar Park, New Delhi. He had three brothers nameley Sh. Siri Ram Kohli who predeceased him, Gulab Rai Kohli, who also predeceased him and Sh. Dalip Rai Kohli, defendant No. 4, who is alive. The plaintiff Nos. 1 and 2 are the children of late Sh. Siri Ram Kohli, while defendant No. 1, defendant No. 2 and defendant No. 6 are the children of Sh. Gulab Rai Kohli. (II) The plaintiffs have filed this suit for partition and permanent injunction on the ground that late Sh. Faqir Chand Kohli died intestate. As such his entire estate should be divided between Sh. Dalip Rai Kohli, the surviving brother and the legal heirs of the other two deceased brothers namely Sh. Siri Ram Kohli and Sh. Gulab Rai Kohli i. e. the plaintiffs and defendants. It is alleged in the plaint that the defendant No. 1 is trying to assert his right over the whole property on the basis of an allegedly forged and fabricated Will, alleged to be executed by deceased Sh. Faqir Chand Kohli. It is averred in the plaint that late Sh. Faqir Chand Kohli did not even have the mental capacity to execute the Will. (III) The defendants I and 4 had taken a preliminary objection in the written statement that the plaint was liable to be rejected under Order VII Rule 11 Civil Procedure Code even if the allegations in the plaint were taken to be true. The plaintiffs case was that late Sh. Faqir Chand Kohli had died as a bachelor and intestate. In view of Section 8 and 9 of the Hindu Succession Act no person other than the surviving brother of the deceased Sh. Dalip Rai Kohli, would inherit the property of the deceased. The plaintiffs case was that late Sh. Faqir Chand Kohli had died as a bachelor and intestate. In view of Section 8 and 9 of the Hindu Succession Act no person other than the surviving brother of the deceased Sh. Dalip Rai Kohli, would inherit the property of the deceased. As such there was no question of the plaintiff and other defendants, the nephews and nieces becoming co-owners. The plaintiff in the reply took the plea that the surviving brother Sh. Dalip Rai Kohli had already relinquished his right in the property and accordingly the suit would not be barred under Section 8 of the Hindu Succession Act. (IV) The plaintiffs also denied the factum of execution of the Will in favour of defendant No. l. Having regard to the pleadings, the disposal of I. A. No-10198/94 was deferred on 15-11-1995 for recording of the statement of the parties under Order X Civil Procedure Code. (V) The statement of the parties was recorded on 11-1-1996. The plaintiff in his statement claimed that he had been told by defendant No. 4 i. e. Sh. Dalip Rai Kohli, that he had no interest in the property of late Sh. Faqir Chand Kohli and had relinquished his share in favour of the plaintiff and defendants. The plaintiff stated that this was verbally told to him. Further he had not seen any relinquishment in writing. (VI) Sh. Dalip Rai Kohli, the surviving brother deposed in his statement that there was no occasion for him to relinquish s share since he was in the knowledge that late Sh. Faqir Chand Kohli had executed a duly Registered Will and that the said Will was in favour of the defendant No. 1. Sh. Dalip Rai Kohli further stated that he had never told the plaintiff that he relinquished his share in the property. ( 3 ) LET us consider the matter in the light of the foregoing. Admittedly no relinquishment Deed has been produced by the plaintiff. Sh. Dalip Rai Kohli, the surviving brother has himself stated on oath that there was no occasion for him to relinquish his interest in the estate of his deceased brother. Although Sh. Dalip Rai Kohli has stated about the Will being in favour of the defendant No. I, the same is required to be proved in appropriate proceedings. Sh. Dalip Rai Kohli, the surviving brother has himself stated on oath that there was no occasion for him to relinquish his interest in the estate of his deceased brother. Although Sh. Dalip Rai Kohli has stated about the Will being in favour of the defendant No. I, the same is required to be proved in appropriate proceedings. Without going into the question of the genuineness of the Will or otherwise, it is clear that there has been no relinquishment by Sh. Dalip Rai Kohli. Apart from the fact that there could not be any relinquishment of immovable property orally, even the said oral relinquishment had been denied by Shri Dilip Rai Kohli. ( 4 ) REFERENCE may be made to Section 8 and 9 of the Hindu Succession Act. Sh. Dalip Rai Kohli being the brother of the deceased falls in entry II of Clause II, while the plaintiffs and the other defendants would fall within the entry IV of class II of the schedule to the Act. By virtue of order of succession in Section 9 of the Hindu Succession Act, the heiers in the first entry in class II are to be preferred to those in the second entry and so on in succession. The plaintiffs claimed partition of the property in the suit initially on the ground that the estate of late Sh. Faqir Chand Kohli is to be divided among the plaintiffs and defendants who are the nephews, nieces and defendant No. 4, who is the brother of. The deceased. On an objection to the maintainability of the suit being taken, the plaaintiffs in the replication took the plea of relinquishment of share by the brother. However no relinquishment in writing was pleaded. This has been denied by Sh. Dalip Rai Kohli himself on oath. In this view of the matter the plaintiffs do not have a right to sue on the basis of the deceased having died intestate. The plea of relinquishment is a vexatious and meritless one. It cannot provide a right to sue to plaintiffs. It would be desirable to nip this false plea in the bud. Reference may bee made to the decision of the Supreme Court in T. Arivandandam Vs. T. V. Satyapal 1977 4 SCC 467 m this connection. The plea of relinquishment is a vexatious and meritless one. It cannot provide a right to sue to plaintiffs. It would be desirable to nip this false plea in the bud. Reference may bee made to the decision of the Supreme Court in T. Arivandandam Vs. T. V. Satyapal 1977 4 SCC 467 m this connection. The issue is decided in favour of the defendants and it is held that the suit filed by the plaintiffs claiming partition of estate of Late Sh. Faqir Chand Kohli during the lifetime of defendant No. 4, Sh. Dalip Rai Kohli brother of the deceased is not maintainable. The suit is accordingly dismissed. This would also dispose of the application (IA 10198/94) under Section VII Rule 11 Civil Procedure Code and no separate orders are called for the same.