TaxTMI 
TaxTMI 
1997 (3) TMI 650
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....sion to the undivided co-owners of the suit property. (3) The plaintiff is the son of defendant No. 1 and he is claiming 1/4th share, although during the course of arguments in the present application, the plaintiff claimed 1/5th share in the suit property. Defendants No. 2 & 3 are the other two sons of defendant No. 1, defendant No. 4 being the daughter of defendant No. 1. The defendant No. 1 as owner in respect of the suit property entered into an agreement to sell with the defendants No. 5 to 9 and others and also received substantial consideration and in pursuance of the said Agreement to Sell handed over possession of the suit property to the said defendants 5 to 9. (4) It is stated in the plaint that the suit property was held on lease by Shri J.C. Robert originally. The said lease hold property was thereafter held by one Manzoor Ali. The Regional Settlement Commissioner, New Delhi sold the said leasehold rights of the said property in public auction on 8.2.1952 to Shri Raja Ram vide sale certificate dated 21.9.1952 effective from 19.5.1957. The Military Land Register maintained by defendant No. 10 under the Cantonment Land Administration Rules, 1937 contains the afores....
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.... Ram and his three sons although the same stood in the name of Shri Raja Ram and that in the year 1969 Raja Ram expired leaving behind a Will dated 11.1.1965 whereby he had bequeathed his right of 1/3rd share in the property in equal share i.e. 1/3rd each to his three sons - Wazir Chand, Hira Lal and Chaman Lal. In a suit for partition filed in this Court being Suit No. 235/1969 this Court passed a preliminary decree for partition of the property and thereby entitling these three sons to 1/3rd share of the property equally. Under the aforesaid decree the defendant No. 1 received 1/3rd of the property which is the suit property and accordingly the suit property at the hands of the defendant No. 1 is self-acquired and not ancestral and that the plaintiff has no right, title or interest in the said property. (7) In view of the aforesaid pleadings of the parties it appears that there is no dispute in respect of certain factual positions namely - that the property including the suit property stood purchased by Shri Raja Ram under sale certificate dated 21.9.1962 w.e.f. 19.6.1957 and that on 11.1.1965 Shri Raja Ram executed a Will subsequent to which Raja Ram died on 20.3.1969. There ....
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.... shall devolve according to the provisions of Chapter Ii and Class I of the Schedule provided that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. In interpreting the provisions of the Act it is necessary to bear in mind the Preamble to the Hindu Succession Act. The Preamble states that it was an Act to amend and codify the law relating to intestate succession amongst the Hindus. It is thus laid down in paragraph 20 of the said judgment : "IN view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu Law get a right by birth of the said property contrary to ....
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.... the WILL. It is the case of both the parties that the defendant No. 1 inherited the properties left behind by Raja Ram on the basis of the Will as a successor-in-interest, On careful reading of the contents of the Will left behind by Raja Ram it is seen that it was intended in the said Will that the properties left behind by Raja Ram were to be owned, taken, shared and possessed in three equal shares by Wazir Chand, Hira Lal and Chaman Lal and none else. The intention of the propounder of the Will is apparent and clear that the legatees were the sons and not the grand-sons or the coparcenary of the sons. It further indicates absolute bequest ownership to the successors-in-interest and not legacy to smaller joint family of these sons. The aforesaid intention of the propounder has also been given effect to by this Court while passing a preliminary and final decree in respect of the partition of the property when the properties were ordered to be divided between the three sons in 3 equal shares by metes and bounds. The aforesaid position is also understood to be such by the plaintiff as apparent from the pleadings in the plaint. Therefore, there is no manner of doubt in the present c....
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....the land belonged to the Huf but held that it belonged to the defendant No. 1 as his absolute property and not ancestral. If under certain mis-apprehension, as is stated by defendant No. 1, he had submitted such a return the same cannot be interpreted to mean that the defendant No. 1 by the aforesaid action intended to throw the property into the common hotch potch and by giving up and relinquishing his absolute interest in favor of the HUF. I do not find any force in the submission of the learned Counsel for the plaintiff to hold that in view of the aforesaid declaration by filing the return by the defendant No. 1 the character of the property stood changed from self-acquired property to Huf property. In my considered opinion the status and the nature of the land owned and possessed by the defendant No. 1 was his absolute property and not ancestral property and that it cannot be said that by filing the aforesaid return showing the suit property to be Huf property the defendant No. 1 intended to give up and relinquished his absolute interest in favor of the HUF. Since I have come to a prima facie conclusion that the suit property was the absolute property of the defendant No. 1 and....