PRAN NATH KAUSHAK v. RAJINDER NATH KAUSHIK — 1985 DIGILAW 83 (DEL)

D. R. KHANNA ( 1 ) IT is not unoften that when a person tries to over-reach and deprive the others of their share in property, the action recoils and he turns out to be the worst loser. That is what is sometimes called the inevitable run of karma . ( 2 ) PT. Som Dutt Kaushik, who retired as an Under-Secretary in the Government of India obtained a perpetual lease of the plot bearing No. 215 Jor Bagh, New Delhi in 1954 and paid Rs. 6,850. 00. Soon thereafter he constructed a double storeyed house thereon with a barsati on the second floor at a cost of about Rs. 47,000. 00. The entire family which was constituted of Pt. Som Dutt, his three sons and one daughter started residing in the same. Som Dutt s wife had died much earlier in the forties. Som Dutt himself died in April, 1962. ( 3 ) AS a result of an arbitration between the four children of Som Dutt, an award was given in March 1963 and got registered. It was later made a rule of the Court. In terms thereof, each of the three brothers got equal share in the property and the sister purported to relinquish her claim in the same. ( 4 ) IN March 1978 the present suit was brought by one of the sons Maj. Pran Nath Kaushik for partition of this property and the defendants impleaded were his two brothers. During the course of the trial, it came out that the actual possession of the property was with Rajinder Nath Kaushik defendant No. 1 who was the eldest of the three brothers. The other two brothers had been earlier posted outside Delhi. Rajinder Nath initially was in occupation of ground floor, but later obtained possession of the first floor also from where the Lever Brothers, who were tenants vacated in 1976. In this portion Rajinder Nath inducted his wife s brother L. N. Misraand termed him as a care taker. In the meanwhile Rajinder Nath was also posted outside India. He had, however, kept his belongings on the ground floor. The plaintiff in the meanwhile retired from army service and having come to Delhi wanted to occupy the first floor. He was not allowed to do so by L. N. Misra. This was the plight meted out to a brother who was equally a co-sharer. He had, however, kept his belongings on the ground floor. The plaintiff in the meanwhile retired from army service and having come to Delhi wanted to occupy the first floor. He was not allowed to do so by L. N. Misra. This was the plight meted out to a brother who was equally a co-sharer. Rajinder Nath preferred his wife s brother to his own though in letters written to him he continued to show all platitudes towards him. Pran Nath had as such to stay in the residential accommodation which his wife as employee of the All India Institute of Medical Sciences had been allotted in the Institute. ( 5 ) RAJINDER Nath defendant No. 1 resisted the suit for partition and raised various claims over the property in his favour on account of the money spent in its construction as well as the marriage of the sister. All these were negatived and a preliminary decree for partition holding that each brother had l/3rd share was passed on 11-12-1981. Similar decree for accounts was also passed as the plaintiff had been contending that Rajinder Nath had been realising the rents of the property which had not been accounted to him as well as to defendant No. 2. A Commissioner was then appointed for partitioning the property by metes and bounds as well as going into accounts. ( 6 ) SO far as the property is concerned, it being found impartible, was put to auction between the three brothers. It now stands purchased jointly by the plaintiff and defendant No. 2 and the sale has been duly confirmed. The bid given was of Rs. 15 lacs which was the reserve price in that auction. They have deposited Rs. 5 lacs payable to Rajinder Nath. His attempt to get the confirmation of sale set aside failed in appeals. ( 7 ) WHEN these two brothers proceeded to take possession of the property, L. N. Misra set up a claim of tenancy in his favour. This was negatived by Luthra, J. and he was required to vacate the premises in his possession and hand over peaceful possession to both the plaintiff and defendant No. 2. He went up to the Supreme Court to challenge this order but without success. The first floor and the second floor have now been taken into possession by the plaintiff and defendant No. 2. He went up to the Supreme Court to challenge this order but without success. The first floor and the second floor have now been taken into possession by the plaintiff and defendant No. 2. ( 8 ) SO far as the decree for accounts, it may be mentioned that the Commissioner has reported that a sum of Rs. 13,559. 39 is due to the plaintiff from defendant No. 1 and further Rs. 22,837. 90 are due to defendant No. 2 from defendant No. 1. This ex-facie reflects to what extent Rajinder Nath s professed claim has basis against his brothers. Of course a final decree in this regard remains to be passed. ( 9 ) THE ground floor of the property continues to be in possession of Rajinder Nath and his family. Possession of the same was 123. also directed to be given to the plaintiff and defendant No. 2. It was then that the two sons of Rajinder Nath namely Rajiv and Sanjay filed objections under Order 21 Rule 97, Civil Procedure Code. asserting that the property being ancestral and belonging to the joint Hindu family, they had acquired interest in the same by birth and, therefore, their rights could not be eliminated as a result of sale in favour of plaintiff and defendant No. 2. They also alleged that their father had acted in collusion with their uncles. These objections were, by a detailed order, dated 30-4-1984 dismissed by Luthra, J. and it was held that even if it was assumed that the property originally belonged to the joint Hindu family of Som Dutt, the arbitration between the three brothers and sister had resulted in the severance of the joint status and that in any case in view of Section 6 of the Hindu Succession Act and the decision given by the Supreme Court in the case Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) 3 SCR 761 : ( AIR 1978 SC 1239 ), there was a deemed partition,. and the rights that the two sons of Rajinder Nath had were qua the share which has fallen to the lot of Rajinder Nath in the form of money and they could assert those rights in the same. and the rights that the two sons of Rajinder Nath had were qua the share which has fallen to the lot of Rajinder Nath in the form of money and they could assert those rights in the same. Both these sons then went in appeal against this order but this too was dismissed and they obtained time up to 31-12- 1984 to vacate the ground floor subject to their paying Rs. 1,000. 00 per month as damages for use and occupation. They have, however, failed to hand over possession and as such a contempt application is pending. In the meanwhile it is stated from the side of the plaintiff that they have proceeded abroad and may not be available to face theconsequence of the contempt proceedings. A suit was also instituted by Rajiv for partition and declaration about this property. He applied for interim injunction in the same but this was disallowed by Luthra, J. ( 10 ) NOW a similar petition under Order 21 Rule 97 has been moved by a third son of Rajinder Nath named Ajay. He too has set up the case that the property was ancestral and joint Hindu family in which he has acquired a right by birth. This right he pleads is not in any manner drawn from his father which could have been affected by the partition decree which has been passed against him. A number of documents have been filed by him in order to show that his grandfather Som Dutt was a person of substance and had agricultural lands and properties inherited from his ancestors in Ambala District. Mathra Dass was the grandfather and on his death in 1906 his agricultural land was mutated in the name of his son Harnam Dass. Later in the year 1912 mutation was effected in favour of Som Dutt on the death of Harnam Dass. Certain other properties were also purchased or obtained on mortgage by the ancestors. From them, it is sought to be brought out that a nucleus of the joint Hindu family property existed. In 1950 Som Dutt sold some land and property in Ambala and then acquired a property in Karol Bagh, Delhi in 1952. This too was sold in 1953 and from the sale proceeds it is stated that the plot in Jor Bagh was obtained and then the property constructed. In 1950 Som Dutt sold some land and property in Ambala and then acquired a property in Karol Bagh, Delhi in 1952. This too was sold in 1953 and from the sale proceeds it is stated that the plot in Jor Bagh was obtained and then the property constructed. Reference has also been made from his side to the amendment introduced in Order 21 Civil Procedure Code. which renders objections under Rule 97 as a full-fledged suit. Such a matter it is urged can only be determined after framing of issues and allowing the parties to lead evidence. In support. reliance has been placed on a decision of the Bombay High Court in the case Nusserwanji E. Poonegar v. Mrs. Shirinbai F. Bhesania, AIR 1984 Bom 357 . ( 11 ) A number of other authorities have been cited on the status of a co-parcener under the Hindu Law and his acquiring interest in the co-parcenary property by birth. His right, it is pointed out, is not drawn from his father or anyone else but exists independently by operation of law. I am not referring to them here as the position of law in this respect is not disputable. ( 12 ) HOWEVER, there are other circumstances which cannot be ignored and which were taken note of at the time of the passing of the preliminary decree. Som Dutt had received substantial amount of provident fund at the time of his retirement and the same far exceeded the amount which was invested on the acquisition of the plot and the construction of the property in dispute. His retirement had taken place before this acquisition. He had insurance policies also of several thousands which had matured, and he had got the money. He was also drawing Rs. 450. 00 per month as pension. With all this independent source of earnings and money available under the Hindu Gains of Learning Act of 1930, it did not acquire the character of joint Hindu family properly in spite of the existence of nucleus thereof. There was, therefore, no presumption that this property constituted his joint Hindu family property. It need hardly be impressed at this stage that though joint Hindu family is a normal incident, and a presumption in its favour arises, none such exists with regard to the property. It has to be treated as separate or self-acquired till it is shown otherwise. There was, therefore, no presumption that this property constituted his joint Hindu family property. It need hardly be impressed at this stage that though joint Hindu family is a normal incident, and a presumption in its favour arises, none such exists with regard to the property. It has to be treated as separate or self-acquired till it is shown otherwise. ( 13 ) THE suit for partition which proceeded in this Court recognised that the three brothers were joint owners in equal shares. The representation by all the brothers recognising 1 /3rd share of each could as well be termed as severance of joint status in case the property was of joint Hindu family. Such family is not static, but is a fluctuating concept. It goes on increasing by births and decreasing by deaths. No member can claim a particular share at the particular time in the joint property. The same is the position of coparcenery. In the circumstance. once the members of the joint family or heads of the different branches of the coparcenery agree to specification of shares, the same can be treated to result in severance of joint status, though the division by metes and bounds may take place later on. In the circumstances, the pleadings of the parties in the suit could further be treated as partition of joint status. This was irrespective of respondent No. 1 making mention in his written statement of the parties as members of the Hindu undivided family. Thus in para 5 he had stated after making mention of the demise of his father on 12-4-1962 as under : "it is submitted that the plaintiff and each of the defendants in this suit have become entitled to 1/3rd share each, as members of the Hindu undivided family, in the said house No. 215, Jor Bagh, New Delhi subject to the answering defendant No. 1 being reimbursed for the said amount of Rs. 60,000. 00 (Rupees sixty thousand only) from the value of the said house in suit and in addition he is entitled to get l/3rd share in the said house in suit. " ( 14 ) LUTHRA, J. in the order dated 30-4-1984, has discussed the position of law whether the impleading of heads of different branches of coparcenery or joint Hindu family is enough in a suit for partition. " ( 14 ) LUTHRA, J. in the order dated 30-4-1984, has discussed the position of law whether the impleading of heads of different branches of coparcenery or joint Hindu family is enough in a suit for partition. This has been answered in the affirmative after referring to the principles of Hindu Law as well as certain decision of the High Courts. It was held that it was not necessary at all to have joined the sons of Rajinder Nath as parties in that suit, and that whatever rights these sons have, are qua the share which has fallen to the lot of Rajinder Nath. That in the present case is in the form of rupees 5 lacs which he has obtained. It was also taken note of that there was no fraud on objectors or collusion enacted by Rajinder Nath with his brother, and rather he had resisted the claims of the brothers throughout. ( 15 ) EARLIER in the order dated 2-3-1984, Luthra, J. had observed as under : "in the present case it is admitted by the applicant that there was an award by Rattan. Lal Kaushik whereby on the statement of Smt. Pushpa Gaur, her share stood relinquished and the plaintiff and defendants 1 and2 became owners in equal shares of the property. Not only in that way partition took place on account of defining of the shares of plaintiff and defendants 1 and 2 but also that was acted upon and that is why in the rent deed dated 7th November, 1977 (reproduced in I. A. 527/84) defendant No. 1 used the words, "joint owner of House No. 2l5, Jor Bagh, New Delhi and Karta of H. U. F. " and did not describe himself coparcener or Karta only instead of joint Owner . ( 16 ) THESE orders had proceeded assuming what could be the rights of the parties and the sons of Rajinder Nath if the property was treated to belong to the joint Hindu family. Both the decisions are binding on the parties. Even if Ajay, objector was not party to those orders they as well have to be followed by me as precedent. ( 17 ) MR. Both the decisions are binding on the parties. Even if Ajay, objector was not party to those orders they as well have to be followed by me as precedent. ( 17 ) MR. Panjwani on behalf of the objector has vehemently contended that the award did not expressly specify l/3rd share of each of the three brothers, and simply mentioned that their sister had no interest in the same. However, the award at the same time, declared the three brothers as absolute owners of the aforesaid property. Their jointness thereafter thus was as co-owners and not as co-parceners. Absolute ownership is incompatible with coparcenery or joint Hindu family. Mr. Panjwani has next referred to the provisions of Section 6 of the Hindu Succession Act, and pleaded that they do not have the implication of a partition between members of the joint Hindu family as such when one male member dies. What takes place is that the share of the deceased at that time is treated as severed from the rest of the joint family property. It is in such share that a partition is deemed to have taken place, and to which the Supreme Court in the case of Gurupad Khandappa ( AIR 1978 SC 1239 ) (supra), referred to. It seems that he is right in this respect. However, the severance of the joint Hindu family with regard to status in the present case, in any case had taken place at the time of the award, and thus when the pleadings in the suit were filed. This is apart from the observation made above about the presumption of the separate property of Pt. Som Dutt Kaushik under the Hindu Gains of Learning Act. ( 18 ) MR. Panjwani has further pointed out that the present value of the property is around rupees 40 lacs, (which the objectors are ready to pay), and that two brothers of Rajinder Nath have got the same at almost l/3rd of the same. In that auction the sons of Rajinder Nath were not permitted to give bids as it was confined to the three brothers only. The sons valuable rights in this property in the circumstances, it is pleaded, cannot be held defeated or foreclosed. In that auction the sons of Rajinder Nath were not permitted to give bids as it was confined to the three brothers only. The sons valuable rights in this property in the circumstances, it is pleaded, cannot be held defeated or foreclosed. It is noteworthy in this regard that it was mutually agreed between the brothers that the bid should be confined to them only so that the property should not go in third person s hand. Rajinder Nath as Karta of his smaller joint Hindu family could be treated to represent the same. It is another thing that the two brothers of Rajinder Nath can be required to forego their claims with regard to what the Commissioner has held in the preliminary decree, for accounts. It is hoped that they would not press the same. ( 19 ) CONSIDERING all these circumstances, I am inclined to dismiss the objections of Ajay. They are as such dismissed. In doing so I am proceeding in the manner Luthra, J. had done in the order dated 30th April, 1984, when the objections of two other sons of Rajinder-Nath were rejected. ( 20 ) LET this suit come up for consideration of the passing of final decree on 27-2-1985. In the meanwhile warrant of possession for delivery of ground floor of the property in dispute to Pran Nath Kaushik and Surender Nath Kaushik be issued for 29-3-1985.