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2008 DIGILAW 238 (CAL)

Pramod Kumar Bajaj v. Shew Ratan Bajan

2008-02-26

BADAR DURREZ AHMED, V.B.GUPTA

body2008
Judgment : SANJIB BANERJEE, J. (1.) TWO of the defendants seek leave to amend the written statement filed on their behalf in this suit for partition and administration and include a counter claim therein. The proposed counter claim is directed both against the plaintiff and some of the other defendants, who attempt to resist it on the principal ground that it would change the nature and character of the suit and bring within its fold issues that a partition suit cannot accommodate. (2.) NO preliminary decree has yet been made but the opposing parties remind of the principle recognised in Order VIII Rule 6a of the Code of Civil Procedure, 1908 that a counter claim may not be received if the cause of action indicated therein is one that arose after the date of filing of the written statement or after the time within which the written statement was required to be filed. The applicants claim that tenants and rank trespassers had been inducted into premises no. 6a, Balmukund Mackar Road, Calcutta - 700007 which is partly occupied by the parties as their residence. It is evident that the persons that the applicants describe as trespassers may have been inducted subsequent to July 16, 1996 as the applicants suggest that such persons have been allowed to occupy portions of the said premises in derogation of an order passed in the suit on July 16, 1996. The applicants claim that in September, 2006 the applicants came to learn that the third, fourth and fifth defendants had acquired other properties out of the rents and income relating to premises no. 6a, Balmukund mackar Road (hereinafter referred to as premises no. 6a), albeit in the names of their respective wives. The applicants seek to assert, by incorporating the amendments that the second, third and fifth defendants had acquired the properties out of the corpus and such properties should be declared to be part of the joint assets. The applicants say that the plaintiff aided in the second, third and fifth defendants secreting the joint funds for such purpose. The reliefs for which the applicants seek to counter claim include a declaration relating to the additional properties being introduced into the joint assets, partition thereof and, generally, for accounts to be rendered. The applicants say that the plaintiff aided in the second, third and fifth defendants secreting the joint funds for such purpose. The reliefs for which the applicants seek to counter claim include a declaration relating to the additional properties being introduced into the joint assets, partition thereof and, generally, for accounts to be rendered. (3.) THE applicants urge that there is always a presumption as to acquisition of properties if it can be demonstrated that the acquirers had no separate source of funds save the nucleus of the family. For such purpose, the applicants rely on the judgment reported at AIR 1965 SC 289 (K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer) and place paragraphs 15, 16 and 17 of the report:"15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal, AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) Mad 440: (AIR 1947 PC 189). "16. In the case before us, it is not disputed that the acquisitions in the name of the first defendants wife were made with funds advanced by him. As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is therefore of great importance. "17. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisition made in the names of the first defendants wife, his son, and his grandson sufficient nucleus from which these properties could be acquired. "17. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisition made in the names of the first defendants wife, his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant. " (4.) THE applicants refer to a sentence from the judgment reported at AIR 1935 pc 12 (L. Guran Ditta v. T. R. Ditta) to suggest that it would always be open to the parties to bring in further property for partition before a final decree was passed, subject to following proper procedure therefor. The applicants emphasise that since even a preliminary decree has not been made, the counter claim will neither occasion any inconvenience to the other parties nor would the proposed amendments deny any of the other parties any rights that may have accrued to them during the interregnum. (5.) THE plaintiff and the other defendants insist that the amendment of the written statement by inclusion of the counter claim would be impermissible. They assert that the applicants refer to transactions subsequent to the applicants filing the written statement in March of 1996 and merely such fact would bar the receipt of the counter claim. (6.) A judgment reported at AIR 1992 Madhya Pradesh 29 (Prem Narayan v. Ram Vilash) is cited by the second, third and fifth defendants and the following passage therefrom is placed: "a defendant, who wants to avail of the above provision under Rule 6-A, has to lay such counter-claim before delivering his defence or before the time limited for delivering his defence has expired. This will be irrespective of the fact whether the cause of action for such a counter-claim accrued to the defendant and against the plaintiff, either before or after the filing of the suit. It will, thus, be seen that in terms of the above provision, it is permissible to file a counter-claim even after filing of the written statement, provided, of course, that the cause of action has accrued before the delivery of defence or before the time limited for delivering the defence has expired. It will, thus, be seen that in terms of the above provision, it is permissible to file a counter-claim even after filing of the written statement, provided, of course, that the cause of action has accrued before the delivery of defence or before the time limited for delivering the defence has expired. The Court, therefore, will not be justified in keeping out of consideration the counterclaim, merely because it came after the filing of the written statement, i. e. , after delivering the defence, if the cause of action has accrued before filing of the written statement or before the time limited for delivering the defence has expired. " Such Madhya Pradesh judgment was based on a judgment reported at AIR 1987 SC 1395 (Mahendra Kumar v. State of M. P.) the following lines whereof are germane: "15. The next point that remains to be considered is whether R. 6a (1) of O. VIII, Civil P. C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R. 6a (1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under R. 6a (1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired. Whether such counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of R. 6a (1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from R. 6a (1), Civil P. C. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable. Under Art. 113, Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. Under Art. 113, Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under S. 3 (2) (b), Limitation Act had been filed by the appellants within three years from the date of accrual to them of the right to sue. The teamed District judge and the High Court were wrong in dismissing the counter claim. " (7.) IN addition, the second, third and fifth defendants cite Section 4 of the benami Transactions (Prohibition) Act, 1988 and rely on the first sub-section thereof to suggest that the court cannot look into the allegations made. The second, third and fifth defendants also speak on behalf of their respective wives and urge that the wives are not parties and cannot be brought in for an adjudication as to the propriety of their acquisitions of properties not forming part of the joint assets. (8.) THE plaintiff argues that the applicants have attempted to fish for evidence, that strangers to the estate cannot be impleaded and that the applicants proffer no explanation for seeking to introduce the counter claim after more than 10 years of the filling of their written statement. A judgment reported at AIR 2005 gauhati 101 (Smt. Sapam Loidang Devi and anr. v. Smt. Takhelkumbam Ongbi rajkumari Monosana Devi and ors.) is placed to suggest that the wives of the parties sought to be impleaded are not necessary parties. The judgment does not throw any light on the matters in issue in the present application. (9.) IT is first to be assessed whether the point canvassed under the Benami transactions (Prohibition) Act, 1988 is of such nature as would make the counter claim demurrable. For, if the counter claim is demurrable, the court can look into such aspect if the counter claim is sought to be introduced by way of an amendment. It would be futile to receive a counter claim that the defendant would invariably fail to establish it at the trial. Section 4 of the 1988 Act provides: "4. For, if the counter claim is demurrable, the court can look into such aspect if the counter claim is sought to be introduced by way of an amendment. It would be futile to receive a counter claim that the defendant would invariably fail to establish it at the trial. Section 4 of the 1988 Act provides: "4. Prohibition of the right to recover property held benami.- (1)No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. " Subsection (3) of the section makes the provisions inapplicable where the person in whose name the property is held is a coparcener in a Hindu undivided property and the property is held for the benefit of the coparceners in the family. A Hindu joint family consists of all persons lineally descended from a common ancestor. Such a joint family includes the wives and unmarried daughters of such persons. A Hindu coparcenary may be a much narrower body than the joint family, in the sense that it includes only those persons who acquire by birth an interest in the joint or coparcenary property. But a Hindu joint family may consist of even a single male member and widows of deceased coparceners. A Hindu coparcenary may be a much narrower body than the joint family, in the sense that it includes only those persons who acquire by birth an interest in the joint or coparcenary property. But a Hindu joint family may consist of even a single male member and widows of deceased coparceners. The hindu undivided family referred to in sub-section (3) (a) of Section 4 of the 1988 act would be somewhat more than the Hindu coparcenary. (10.) THE applicant-defendants here allege that there was a joint nucleus. The rent yielded by premises no. 6a, according to the applicants, formed part of the corpus of the Hindu undivided family. It is such rent that the applicants claim, that has been wrongfully passed on by the second, third and fifth defendants to their respective wives for such wives to acquire properties with the moneys. It is not an altogether absurd allegation and requires to be tested on merits. The immovable properties against which the applicant-defendants seek to proceed are, as they claim, the manifestation of the wrongful removal of funds from the corpus. Once such a charge is brought, the wives need to demonstrate that they had other sources of or access to funds that enabled them to acquire the properties. But the charge cannot be rejected offhand on the strength of Section 4 of the 1988 Act. The assessment that has been made here is tentative and subject to the opponents having a right to urge such ground at the trial. (11.) IF the counter claim is one of such nature where some of the parties admittedly entitled to shares in the joint assets claim that certain other properties, by reason of the manner of their acquisition, need to be seen as part of the joint pool, such counter claim has to be taken on board. The authorities cited speak of properties being introduced even after a preliminary decree. The mere fact that a property is alleged to be part of the joint assets, does not make it part thereof, but it has to be shown that it as a part of the joint properties. There is a declaration as to title in respect of the properties that accompanies an adjudication in a partition suit. The mere fact that a property is alleged to be part of the joint assets, does not make it part thereof, but it has to be shown that it as a part of the joint properties. There is a declaration as to title in respect of the properties that accompanies an adjudication in a partition suit. (12.) IN a suit for partition, the final reliefs are for the benefit of each of the parties entitled to a portion of the joint assets. In such sense, a defendant in a partition suit is as much entitled to reliefs as the plaintiff. There, really, is little distinction between a plaintiff and a defendant in a partition suit, where it is the admitted position that the defendant is also entitled to a part of the joint properties or undivided estate. If a partition suit appears to stand on a different footing than other suits, Order VIII Rule 6a may not have any application. What is important to notice is that notwithstanding the amendment for including the proposed counter claim being allowed, the point may still be urged at the trial. The objection taken by the plaintiff and the other defendants on the ground of order VIII Rule 6a is tentatively decided in favour of the applicant-defendants, but subject to the opponents having a right to canvass such point at the trial. (13.) ON the strength of the allegations contained in the counter claim, an adjudication is called for as to whether the immovable properties acquired by the wives of the second, third and fifth defendants belong to the joint pool and had been acquired by funds wrongfully removed from the corpus. Such a counter claim would not change the nature or character of the suit nor would it seek to dislodge any right unimpeachably vested in any of the other parties or the proposed added defendants. (14.) THE application succeeds. There will be an order in terms of prayers (a), (b)and (c) of the application. The defendant nos. 1 and 4a will have leave to verify the amended written statement. The Department will carry out the amendment within a period of three weeks from the date of issuance of a certified photostat copy of this order. (14.) THE application succeeds. There will be an order in terms of prayers (a), (b)and (c) of the application. The defendant nos. 1 and 4a will have leave to verify the amended written statement. The Department will carry out the amendment within a period of three weeks from the date of issuance of a certified photostat copy of this order. The amended written statement including the counter claim will be served on the added defendants and the other parties within two weeks from the date of the amendment being carried out and written statements or additional written statements, as the case may be, may be filed by the parties within three weeks from the receipt of the amended written statement. There will be no order as to costs.