Delhi High Court
Shri Jageshwar Nath vs State & Ors. on 18 December, 2009
Author: V.B.Gupta
Bench: V.B. Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO. No.60/2008
% Judgment reserved on: 2nd December, 2009
Judgment delivered on: 18th December, 2009
Shri Jageshwar Nath
S/o. Late Shri Ram Kishan Dass
R/o. 2680, Chooriwalan,
Delhi-110006. ....Appellant.
Through: Ms. Anshu Aggarwal, Adv.
Versus
1. State.
2. Union of India,
Through Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan, New Delhi-110001.
3. Ram Manohar Lohia Hospital
(Wellington Hospital)
Through Medical Superintendent
R.M.L. Hospital,
Baba Kharak Singh Marg,
New Delhi-110001. ....Respondents.
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
FAO 60/2008 Page 1 of 11
Present appeal has been filed against judgment dated 24th September, 2007 passed by Additional District Judge, Delhi.
2. Vide impugned judgment, petition filed by appellant under Section 278/276 of the Indian Succession Act, 1925 (for short as „Act‟) for grant of letter of Administration with respect to Estate left behind by Late Rameshwar Nath and his wife Smt. Kamla Wati, was dismissed.
3. Brief facts are that Sh. Rameshwar Nath died on 7.12.1995 and Smt. Kamla Wati died on 14.08.2004. Appellant is the real brother of Sh. Rameshwar Nath and brother in law (Devar) of Smt. Kamla Wati. The family of appellant was living at 2680, Chooriwalan, Delhi as a Joint Hindu Family, which included his father, real uncle Sh. Ram Nath and brother Sh. Rameshwar Nath. Sh. Ram Nath, uncle of appellant was issue-less and therefore out of love and affection towards the elder male child Sh. Rameshwar Nath, he made a desire to treat Sh. Rameshwar Nath as his son so as to give him the name of the father and to perform social rituals as a son. There was no severance from the family of birth and up bringing and custody of Sh. Rameshwar Nath was never given, as his custody remained with his natural mother Smt. Bhagwati Devi, who brought him up. No adoption deed was ever executed/registered nor any ceremonies regarding adoption were performed. With mutual understanding, Sh. Ram Nath started treating Sh. Rameshwar Nath as his son. He was taken by him in the family business as one of the partners. Some of the properties were purchased by Sh. Rameshwar Nath in his name and in the name of his wife Kamla Wati from the joint family and joint family business funds.
FAO 60/2008 Page 2 of 11
4. In 1954-55, Sh. Rameshwar Nath started showing serious mental illness. Thus, in the year 1961, Sh. Ram Kishan Dass, natural father applied to the court of District Judge for the appointment of guardian and manager of Sh. Rameshwar Nath, who was declared to be lunatic by the doctors. The petition was contested by Smt. Kamla Wati, wife of Sh. Rameshwar Nath. Vide orders dated 12.03.1963, Sh. P.P.R. Sawhney, the then District Judge, appointed Sh. Ram Kishan Dass as the guardian and manager for lunatic Sh. Rameshwar Nath. The appointment of guardian and manager was upheld by the High Court of Punjab, having its Bench at Delhi.
5. In year 1965, Smt. Kamla Wati started illegally mismanaging the property bearing No. E-49, Kamla Nagar, New Delhi by usurping the rent and letting out the properties, belonging to Sh. Rameshwar Nath. Sh. Ram Kishan Dass therefore filed Suit No.634/66 for possession of house No.E-49, Kamla Nagar, New Delhi and for rendition of accounts against Smt. Kamla Wati, wife of lunatic Sh. Rameshwar Nath before this Court. During proceedings, an understanding was arrived at between Sh. Ram Kishan Dass, father of Sh. Rameshwar Nath and his wife Smt. Kamla Wati and it was decided amongst the father and wife of Sh. Rameshwar Nath to make arrangements in the form of family settlement, required to be endorsed and enforceable in the form of a decree and as such this Court, vide order dated 01.10.1973 passed decree in Suit No.634/66 in terms of the family settlement. Clause-XI of the family settlement reads as under:
"Clause-XI That after the death of Rameshwar Nath, plaintiff and Kamla Devi, defendant, the respective properties shall go to FAO 60/2008 Page 3 of 11 charity to Willingdon Hospital, New Delhi for the treatment of mentally infirm persons."
6. Sh. Ram Kishan Dass expired in the year 1990. Appellant applied for appointment as guardian and Manager of Rameshwar Nath in place of Sh. Ram Kishan Dass. Vide order dated 23.10.1981, District Judge, appointed appellant as guardian and manager of lunatic Sh. Rameshwar Nath.
7. Appellant in his petition stated that he has succeeded to the estate of the deceased under the Hindu Law of Succession. Clause-XI of family settlement transferring the properties after death, to charity to Willingdon Hospital being illegal and void ab-initio has no legal force and after the death of the deceased, the property vests in him. It is also stated that clause-XI involves the transfer of expectancy rights of appellant as heir of the deceased. The same is prohibited under Section 6 (a) of Transfer of Property Act and as such, is illegal, void and not binding on the parties. The contents of clause-XI are extraneous to the subject matter of the suit and Willingdon Hospital was not a party to the family settlement and therefore, clause-XI is redundant, ineffective and void and has no force of law. It does not form part of the decree. Further, the manager had no permission to transfer or devolve the properties of Sh. Rameshwar Nath, as no prior permission was obtained and therefore, is barred by the provisions of Section 30 of Guardianship &Wards Act as well a Section 78 of the Indian Lunancy Act.
8. It was further stated that clause-XI is void being repugnant and therefore, confers no title on respondents No.2 & 3. The property passes on the appellant, being real brother of Rsmeshwar Nath and brother in law of Smt. Kamla Wati, as per the law of FAO 60/2008 Page 4 of 11 inheritance and Succession. As the family properties belong to Sh. Rameshwar Nath and deceased Kamla Wati and as such the property is now reverted back to the family of the husband i.e. agnates/legal heirs of husband and devolved upon appellant, who is Class II legal heir as well as he comes under the heritable decree of succession of kinship as agnates of Sh. Rameshwar Nath, husband of deceased Smt. Kamla Wati.
9. Respondents filed their objections stating that present petition is not maintainable. As per compromise in Suit No.634/66, the respective properties of Sh. Rameshwar Nath and Smt. Kamla Wati have to go to charity to Willingdon Hospital, after their death. Appellant has no locus standi to file the present petition, since he is not a member of the family of late Sh. Rameshwar Nath and Kamla Wati since 1937 when Sh. Rameshwar Nath had gone in adoption. Adoption of Sh. Rameshwar Nath has never been challenged till date, in any court of law and therefore, appellant has no connection with the family of late Sh. Rameshwar Nath. It is further stated that proceedings are summary in nature and court has no jurisdiction to decide the title of the property. The court of Sh. Sanjay Sharma, Additional Rent Controller, vide order dated 07.12.2005 held that respondents are the only legal heirs of Sh. Rameshwar Nath. Respondents also denied that appellant is legal heir of late Sh. Rameshwar Nath or he is entitled to succeed to the estate of the deceased. It was also denied that clause-XI, transferring the properties after death in the charity of Willingdon Hospital, is illegal and void ab-initio. The compromise decree passed by this Court has attained finality and is binding on the parties. FAO 60/2008 Page 5 of 11
10. Notice of this appeal was issued to the respondents. All the respondents were duly served. Initially, counsel for respondents No.2 & 3 appeared, but later on he absented and respondents were proceeded ex-parte.
11. It is contended by learned counsel for appellant that clause-XI of the Family Settlement Deed/Family Arrangement is illegal, as the same is in the nature of transferring the immovable properties of Joint Hindu Family, that too to a stranger.
12. Another contention is that father of Sh. Rameshwar Nath as guardian, filed a suit against Smt. Kamla Wati for possession. That suit was decreed by this Court, in terms of settlement dated 21st September, 1973. This settlement clearly provides that parties were given limited interest for life time to get rent only, keeping in view that the property was family property. The contents of clause-XI being extraneous to the subject matter of suit for possession of family property and Willingdon Hospital was not party to the family settlement. Clause-XI is thus redundant, void and has no force of law. Further, clause-XI of family settlement in suit was a nullity as this clause was beyond the subject matter of the suit.
13. Another contention is that, law of inheritance of properties of Joint Hindu Family is governed by the provisions of the Act and Schedule (III) of the Act, specifically provides for restrictions and modifications. It provides that "a Hindu is not authorized to bequeath property which he/she could not have alienated inter-vivos".
14. It is further contended that trial court ignored the fact that both Rameshwar Nath and Smt. Kamla Wati, were given life time interest in the properties, restricted in joint FAO 60/2008 Page 6 of 11 family properties its enjoyment personally for their life time and as such it cannot be transferred by them in any manner at any time. Deceased had no authority to give away the family properties during their life time and had no right to devolve family properties by way of will, testament or otherwise as per family settlement.
15. In support of its contentions, learned counsel for appellant cited following judgments;
(i) Sunita Shivdasani v. Geeta Gidwani, 2007 R.L.R 377;
(ii) Abhay Sapru v. Chitralekha Bakshi & Anr., 2008 (102) DRJ 744;
(iii) Syed Shah Gulam & Ors. v. Syed Shah Abdul & Ors., AIR 1959A.P. 212;
(iv) Gram Panchayat of Village Naulakha v. Ujagar Singh & Ors., AIR 2000 SC 3272;
(v) Tribeni Mishra & Ors. v. Rampujan Mishra & Ors., AIR 1970Patna 13;
(vi) Baldeo Jha and Ors v. Ganga Prasad Jha & Ors., AIR 1959 Patna 17;
(vii) Dodda Subbareddi v. Gunturu Govindareddi, AIR 1955 Andhra 49;
(viii) Gurdev Singh & Ors. v. Kehar Singh & Ors., AIR 1982 Punjab & Haryana 289;
(ix) Lala Babu Ram v. Smt. Kishen Devi, AIR 1963 Allahabad 509 and;
(x) Bishunath Tewari & Ors. v. Mst. Mirchi, AIR 1955 Patna 66.
16. Trial court framed following issues in the matter;
"(1) What is the effect of clause XI of the Compromise Deed/petition under Order 23 Rule 3 read with Section 151 CPC dated 21.09.1973 executed between Sh. Rameshwar Nath through his next friend Sh. Ram Kishan Dass and Smt. Kamla Wati? Onus placed upon parties.FAO 60/2008 Page 7 of 11
(2) Whether the petitioner has no locus standi to file the petition in view of preliminary objection No.2? OPR (3) Whether the petitioner is entitled for letter of administration in respect of all the properties of deceased Sh. Rameshwar Nath? OPP"
17. All the above issues were decided against the appellant.
18. On Issue No.2, trial court gave the following finding;
"Even this argument is not available to the petition in view of my findings on Issue No.1 that after the death of Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital for the treatment of mentally infirm persons in terms of clause-XI of the compromise deed dated 21.11.1973. Therefore, petitioner has no locus standi to file the present petition. Issue No.2 is decided accordingly."
19. The foremost question which arises for consideration is, as to whether appellant has got any locus standi to challenge the family settlement. Appellant has to show that there is any violation of his legal right or legally protected interest by the family settlement.
20. Case of appellant is that he has succeeded to the estate of deceased under Hindu law of Succession and clause-XI of family settlement transferring the properties after death, to charity to Willingdon Hospital is illegal and void ab-initio and has no force. His further case is that after the death of deceased, the property vests in him.
21. On the other hand, case of respondents before trial court was that, the appellant has no locus standi to file the petition as he has ceased to be the member of the family of FAO 60/2008 Page 8 of 11 Rameshwar Nath and Kamla Wati since 1937 when Rameshwar Nath had gone in adoption to Sh. Ram Nath. After adoption, the person severs all rights and lien from the family of birth. The appellant thus, has no connection with the family of late Sh. Rameshwar Nath.
22. Admittedly, appellant was not a party to the family settlement. Under these circumstances, he had no locus standi to challenge the family settlement or its clause-XI.
23. It has been laid down in S.P. Gupta and ors. v. President of India and ors. AIR 1982 SC 149;
"The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress."
24. Trial court in this regard observed;
"Sh. Ram Kishan Dass, natural father of Rameshwar Nath was appointed as guardian of the person of Rameshwar Nath and manager of his properties vide judgment dated 12.03.1963 Exb.PW-1/3 passed by the then learned District Judge Sh. P.P.R. Sawhney. The learned District Judge has quoted from the application of Ram Kishan Dass that Rameshwar Nath had been given in adoption to Ram Nath in 1937. The averment made in the application of Ram Kishan Dass proves the fact of giving of Rameshwar Nath in adoption to Ram Nath. In order dated 23.10.1991 in FAO 60/2008 Page 9 of 11 Miscellaneous Case No.1/1990 passed by the then learned District Judge Sh. P.K. Jain, it has been quoted from the testimony of the present petitioner that Rameshwar Nath was given in adoption to his uncle in the year 1937 and he has no interest adverse to the interest of Rameshwar Nath. He further gave the statement that he has no right to succeed or to inherit the property of Rameshwar Nath since he has been given in adoption. Passing of the judgment or giving such a statement in court is not disputed. There has been no challenge to the adoption till date by anyone till the death of Rameshwar Nath. Petitioner cannot be allowed to take contrary or alternative pleas, once it has been accepted and admitted by him that Rameshwar Nath was given in adoption. He cannot be allowed to retract from the statement which he gave in earlier proceedings. Any evidence led to the contrary by the petitioner is therefore not acceptable. I, therefore, refuse to believe that it was only a formal family arrangement and not adoption of Rameshwar Nath."
25. It further observed;
"That after the death of Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital for the treatment of mentally infirm persons in terms of clause-XI of the compromise deed dated 21.11.1973. Therefore, petitioner has no locus standi to file the present petition."
26. Clause-XI of family settlement reproduced as above, in unequivocal terms states that after death of Rameshwar Nath and Kamla Wati, the respective properties shall go to charity to Willingdon Hospital, New Delhi, for the treatment of mentally infirm persons.
27. There is no material on record to prove these assertions of the appellant that decree dated 1st October, 1973 was obtained by playing fraud on court. Nor there is any evidence to show that clause-XI of the compromise is unlawful. Under these FAO 60/2008 Page 10 of 11 circumstances, clause-XI of the compromise deed dated 21st September, 1973, that after the death of Sh. Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hopital, New Delhi for the treatment of mentally infirm persons is enforceable.
28. Since appellant has no locus standi in the matter to challenge the clause-XI of the family settlement, there is no need to dwell on the other contentions raised by learned counsel for the appellant. None of the judgments cited by learned counsel for appellant, are applicable to the facts of the present case. The trial court rightly dismissed the petition filed by appellant on the ground that he has no locus standi to file the petition.
29. There is no reason to disagree with the findings given by the trial court. There is no infirmity or ambiguity in the impugned judgment. The present appeal, under these circumstances, is not maintainable and same is hereby dismissed with costs of Rs.25,000/-.
30. Appellant is directed to deposit the costs with Registrar General of this Court, within six weeks from today, failing which he shall recover the same in accordance with law.
31. List for compliance on 3rd February, 2010.
18th December, 2009 V.B. GUPTA, J.
RB
FAO 60/2008 Page 11 of 11