Hirday Narain Tandon v. Kashi Prasad Tandon — 1982 DIGILAW 1304 (ALL)

JUDGMENT : - This is a defendants second appeal from a preliminary decree in a suit for partition declaring the plaintiffs share in the properties in suit to be one-third, and also that the parties are entitled to accounting between themselves from 12th August, 1954, and both the plaintiff and the contesting defendant No. 1 are the accounting parties, that is to say, liable to render account to each other. 2. The plaintiff and the contesting defendant No. 1 are brothers and the defendant No. 2, Smt. Hirobibi, was their mother, who has died during the pendency of the Second Appeal in this Court, and is now represented by the son and daughter of the plaintiff-respondent with the note that the defendant-appellant Hirday Narain Tandon, objected that he was a legal representative of the deceased along with the plaintiff-respondent, and that the plaintiff-respondents son and daughter were not her legal representatives. The reason for this kind of a qualified substitution of the heirs of the deceased respondent No. 2 lay in the fact that the son and daughter of the plaintiff-respondent claimed to be her heirs under a will. The validity of that will was challenged on the ground that Smt. Hiro Bibi had no share in the property in suit, and the question whether she had any share in the property in suit, was the main question to be determined in the appeal. Since the appellant contended that she had no share, and the plaintiff-respondent contended that she had a share, and that she had bequeathed it to his son and daughter, it was considered to be proper that the son and daughter of the plaintiff-respondent, to whom she had purported to bequeath her share, were best entitled to represent her estate in this Second Appeal. 3. The relationship between the parties is not in dispute. The points, on which they were at issue, were numerous, but the main point, which has survived for determination in this Second Appeal, is the extent of the share of the contesting defendant, who is the appellant in this Court. He claimed that his share was one-half on the allegation that the mother had relinquished her share in favour of the two brothers. That allegation was not accepted by either of the two Courts, and the suit was decreed as aforesaid. 4. He claimed that his share was one-half on the allegation that the mother had relinquished her share in favour of the two brothers. That allegation was not accepted by either of the two Courts, and the suit was decreed as aforesaid. 4. The father of the two contesting parties, namely, Lala Ram Prasad Tandon, from whom the property sought to be partitioned had descended, died on 26th Dec., 1941. The parties are presumably governed by the Mitakshara School of Hindu Law. In the result, under sub-sec.(2) of S.3 of the Hindu Womens Rights to Property Act, 1937, the mother of the contesting parties acquired, on the death of Lala Ram Prasad Tandon, the same interest as he himself had in the joint family property, which is the subject-matter of the present suit, and under sub-section (3) thereof, the interest, which so devolved on her, was the limited interest known as a Hindu Womens estate, subject, however, to the proviso that she had the same right of claiming partition as her husband or her sons. She did not claim partition, and, if she had not surrendered her interest, when the Hindu Succession Act, 1956, came into force on 18th June, 1956, the property possessed by her, namely, the interest so acquired by her on the death of her husband in 1941, came to be held by her as full owner and not as limited owner; and as the full owner of her undivided interest in the joint family property, apart from claiming a one-third share in her own right in the suit for partition, she could also bequeath it by will under Section 30 of the Hindu Succession Act. 5. The undivided interest possessed by the mother could have been surrendered or relinquished by her only by a registered instrument, inasmuch as some of the properties were immovable. The defendant-appellant had set up a case of surrender or relinquishment of her interest by the mother. He did not plead or allege that the mother surrendered her interest by a registered instrument. The mother did not contest the suit by filing a written statement, but appeared as a witness in support of the plaintiff-respondent, and stated that she had not surrendered her interest. He did not plead or allege that the mother surrendered her interest by a registered instrument. The mother did not contest the suit by filing a written statement, but appeared as a witness in support of the plaintiff-respondent, and stated that she had not surrendered her interest. From the judgment of the lower appellate Court, it appears that there was no specific plea of surrender of her interest by the mother in the written statement of the defendant-appellant. In his statement under O.10, R.2 of the Civil P. C. recorded on 10th July. 1967, the defendant-appellant did not give any precise date of the alleged surrender, but stated that the mother gave up her claim in the year 1956, and that there was no writing about it. Since there was no written instrument, there could have been no surrender or relinquishment of her interest by the mother in favour of the two contesting parties, and the plea of the defendant-appellant, on this point, was rightly negatived by the two Courts below. 6. A copy of an award said to have been made on the 6th Sept. 1954, by three arbitrators, on a reference, was sought to be filed in this Court with an application under O.41, R.27 of the Civil P. C. In view of the fact that no award had been filed in the Court below the lower Appellate Court did not accept the defendant-appellants contention that the relinquishment of her share by the defendant-appellant was made under the award. The award was not made a rule of the Court. The document which has been filed in this Court, is a carbon copy of what appears to have been an award and purports to bear the signatures of the three arbitrators. From the endorsement on the top of it, it appears to have been received by the defendant-appellant by registered post on the 1st October, 1954. It is not the original award. It does not bear any stamp duty, and it is not known whether the original award was stamped with the requisite stamp duty, it any. The award does not appear to have been registered. It is not the original award. It does not bear any stamp duty, and it is not known whether the original award was stamped with the requisite stamp duty, it any. The award does not appear to have been registered. There is no explanation for not filing the award except for the statement that, as the award was not made, rule of the Court, the defendant-appellant was advised that it was a waste paper and therefore, it was neglected, but it was on the insistence of his counsel in this Court, when he was preparing the case for arguing the appeal during February, 1982 that the defendant-appellant searched the heaps of papers at Allahabad and Sitapur and luckily found the award, sent to him by the arbitrators by registered post lying in a box in the residential house at Sitapur. On the face of it, the very reason given for not filing the award at the trial, is sufficient for the dismissal of the application. Dr. Gyan Prakash, learned counsel for the defendant-appellant, however, relied upon a decision of the Supreme Court in Satish Kumar v. Surinder Kumar, AIR 1970 SC 833 and of a Division Bench of this Court in Kedar Nath v. Ambika Prasad, 1973 All LJ 372: ( AIR 1974 All 37 ), and contended that the award was not a mere waste paper and some legal effect has to be given effect, to. Without going into that aspect of the matter, which is not free from difficulty, it is sufficient to observe that the award was unregistered and the Supreme Court held in Satish Kumars case (supra) that an award given under the Arbitration Act on a private reference requires registration under S.17 (1) (b) of the Registration Act, it the award effects partition of immovable property exceeding the value of Rs. 100. The case sought to be made out by filing the copy of the award is that the mother, ceased to have any interest in the joint family properties, which are the subject-matter of the suit for partition that has given rise to the Second Appeal. The property in suit being immovable property, the award could not have had that effect, even if it was not a waste paper on account of not having been made a rule of the Court, unless it was registered. The property in suit being immovable property, the award could not have had that effect, even if it was not a waste paper on account of not having been made a rule of the Court, unless it was registered. The award was, thus, inadmissible in evidence in case it had that effect. Moreover as observed, what has been filed in this Court is not the original award and it is not stamped. It would not be admissible in evidence for both these reasons. 7. Lastly, when I looked at the award, it does not show that the mother gave up her interest or share in the property. Instead the award declares by Cl.(a) of para 1 that the parties, namely, the two brothers. Who are the contesting parties here and the mother, each have a third share in all the immovable property, including the house property at Sitapur and also the compensation for the Zamindari property as may be realised and recovered after the final decision of the court cases, but Dr. Gyan Prakash wanted to rely on the next two Cls.(b) and (c) of Para 1 of the award, which read as under: - "(b) Each of the two male shareholders will have his share in absolute severality with full powers of disposal. No other party shall have any right, title or interest in the share of the other party. The mother will have a life estate as contemplated under the Hindu Law for a Hindu widow." "(c) That in case of death of the mother her share will be divided between the surviving heirs or heir in equal-moiety." 8. It was contended that the interest given to the mother in her one-third share was the Hindu Widows Limited Estate, and the power to bequeath it, by will, had expressly been negatived by the provision that on her death it shall be inherited by her heirs ill equalmoiety. 9. It appears to me that the award was filed not so much to show that the mother had ceased to have a share in the property on the partition made by the award, but to show that the mother could not have bequeathed her one-third share to the son and daughter of the plaintiff, in the hope that if the will failed on that ground, the mothers share will be inherited by the two brothers equally. But the decision of the Supreme Court in V. Tulasamma v. V. Sesha Reddi, AIR 1977 SC 1944 , provides a complete answer to the contention. Even if the award were admissible and even if it could be given effect to, the share allotted to the mother was not acquired by her for the first time under the award. It was allotted to her in lieu of her pre-existing right, which she admittedly had. Sub-sec.(2) of S.14 of the Hindu Succession Act did not consequently apply: and under sub-section (1) of S.14 thereof, she became a full owner of the property possessed by her when the Hindu Succession Act, 1956, came into form, namely, the one-third share. 10. I accordingly declined the prayer for admission of the award as fresh evidence in this Second Appeal although formal orders dismissing the application were not passed while the matter was being argued, but were technically reserved for being passed alone with the judgment. The application dated 23rd Feb., 1982 under O.41, R.27 of the Civil P.C. for the admission of the award dated 16th Sept., 1954 as additional evidence in this Second Appeal is accordingly dismissed. 11. The twin contentions raised by Dr. Gyan Prakash in support of his plea that the defendant-appellant had a one-half share in the property in suit are without merits, and the finding of the two Courts below that the share of the plaintiff-respondent was one-third and that of the defendant-appellant was also one-third in the property in suit is confirmed. The mother, namely, Smt. Hiro Bibi, the deceased respondent No. 2, could bequeath her one-third share by will, but, when the question of representation of her estate was taken up on the substitution application filed in this Court an application for substitution was also pending in the trial Court, and, for the reasons indicated above, it was not considered necessary to go into the question of the proof of the alleged will said to have been executed by the deceased respondent No. 2 in favour of the son, Ravi Kumar Tandon, and the daughter. Rashmi Tandon, of the plaintiff-respondent No. 1. The question was left for determination by the trial Court, which can, if necessary, examine witnesses in proof of execution and attestation of the will in case the same is denied by the defendant-appellant. 12. Two other points were raised before me. Rashmi Tandon, of the plaintiff-respondent No. 1. The question was left for determination by the trial Court, which can, if necessary, examine witnesses in proof of execution and attestation of the will in case the same is denied by the defendant-appellant. 12. Two other points were raised before me. Some of the joint family (property) was admittedly the subject matter of Encumbered Estates Proceedings. It was urged that that property could not be touched in view of the provision of sub-sec.(2) of S.7 of the U.P. Encumbered Estates Act. Sub-sec.(2) of S.7 of the U.P. Encumbered Estates Act refers to property other than proprietary rights in land which has been mentioned in the notice under Section 11 and it provides that "the landlord shall not be competent without the sanction of the Collector to make an exchange or gift of, or to sell, mortgage or lease, any of that property" so long as the proceedings under the Encumbered Estate Act do not come to an end. The expression "landlord" means the entire body of landlords if more than one and if the property is inherited by more than one person after the death of the landlord, as in the present case, the said provision does not impose any bar on the division of that property by partition among them for its more convenient enjoyment. 13. The last point urged by Dr. Gyan Prakash was against the decree for accounting. He urged that both the parties had been realizing rents or otherwise deriving income from the property and both have been held to be accounting parties. Under these circumstances, the taking of accounts between the two brothers is not likely to lead to my fruitful result. The main dispute between the parties was with regard to the extent of their respective share, and that having been determined, the trouble and expense of taking of accounts would be out of all proportion to the result. Both the parties are, at present, residing at Allahabad. The suit is vending in the Court of the Civil Judge, Sitapur, indeed, a request was made by Dr. Both the parties are, at present, residing at Allahabad. The suit is vending in the Court of the Civil Judge, Sitapur, indeed, a request was made by Dr. Gyan Prakash on behalf of the defendant-appellant that the suit should be transferred to a Court of competent jurisdiction at Allahabad for the convenience of the parties, but the bulk of the properties being unmovable and being situate at Sitapur, the division thereof will necessarily have to be made by the Court of Sitapur, and I declined to entertain that request. In view of all these facts and circumstances, I would modify the preliminary decree by ordering that the parties need not render any account to each other of the income derived by them from the property before the suit. This shall, of course, not preclude the trial Court from adjusting the accounts and equities between the parties in the final decree, if it is found that any of them has been in possession or enjoyment of the income of a disproportionately larger share in the property than his due since the date of the institution of the suit. I further feel that this was not a case in which costs should have been awarded to the parties. 14. In the result, I allow the appeal in part and modify the decree under appeal. The decree for partition and separate possession over his one-third share in favour of the plaintiff is confirmed, but it shall be open to the defendant-appellant if he so desires, to have the matter of the due execution and attestation of the alleged will of the deceased defendant respondent, Smt. Hiro Bibi, in favour of Ravi Kumar Tandon, son, and Rashmi Tandon, daughter of the plaintiff-respondent, tried and determined by the trial Court, it not already so determined. It is declared that Smt. Hiro Bibi, the deceased defendant No. 2, also had a one-third share in the property in suit, and she was competent to dispose of it as a full owner whether by will or otherwise after the enforcement of the Hindu Succession Act, 1956. It is declared that Smt. Hiro Bibi, the deceased defendant No. 2, also had a one-third share in the property in suit, and she was competent to dispose of it as a full owner whether by will or otherwise after the enforcement of the Hindu Succession Act, 1956. The parties shall bear their own costs throughout and it shall be open to such one or more of them as may be interested to have a final decree of partition of their respective shares prepared and to be put into possession of their respective shares by the trial Court in accordance with law. Let a preliminary decree be drawn up accordingly. Ordered accordingly.