Delhi High Court
I.K. Mehra vs Wazir Chand Mehra And Ors. on 31 March, 1997
Equivalent citations: 1997IIIAD(DELHI)713, 66(1997)DLT683
JUDGMENT M.K. Sharma, J.
(1) This order shall dispose of I.A. 4497/ 1995 filed by the plaintiff against the defendants under Order 39 Rules 1 & 2 of the Code of Civil Procedure praying for restraining the defendants No. 5 to 9, their agents and employees from conveying, transferring, alienating and/or encumbering or dealing with the suit property in any manner till the disposal of the suit.
(2) The plaintiff instituted the suit against the defendants for declaration claiming l/5th share in the suit property and also for claiming partition of the suit property by metes and bounds in accordance with the shares of the parties and allot to the plaintiff his share in severality as also for a declaration that defendants No. 5 to 9 have no right, title or interest in the suit property and to surrender possession 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 aforesaid details. Raja Ram expired on 20.3.1969 and the leasehold rights in the said property were transferred jointly in the name of his three sons namely - defendant No. 1 and his brothers Shri Hira Lal and Shri Chaman Lal under the Will dated 11.1.1965. In original suit No. 235/1989 this Court passed a preliminary decree for partition of the said leasehold property on 9.3.1972. Under the aforesaid decree the successor-in-interest of late Raja Ram namely father of defendant No. I became entitled to 1 /3rd share in the leasehold and the three sons of late Raja Ram including the defendant No. 1 divided the said property by metes and bounds. It is stated that defendant No. 1 was in actual physical possession of his 1/ 3rd share under the decree aforementioned and the said I/3rd share held by defendant No. 1 is the suit property. According, to the plaintiff the suit property is ancestral leasehold property in the hands of defendant No. 1 and that the plaintiff and defendant Nos. 2 & 3 being coparceners with defendant No. 1 has interest by birth in the suit property and therefore, the defendant No. 1 could not have surreptitiously and behind the back of the plaintiff and without his consent could not have disposed of the suit property and relinquished possession in favour of defendants 7 & 9 and also could not have appointed defendant No. 5 as his general attorney with regard to the suit property. It is stated that the defendant No. 1 could not deal with the suit property without partitioning the suit property, giving due share in the property to the plaintiff and accordingly the present suit has been filed with the aforesaid relief.
(5) In the application praying for temporary injunction the plaintiff has sought for an injunction restraining the defendants 5 to 9 from dealing with the suit property. This Court, while issuing notice on the application granted an ad interim temporary injunction in favour of the plaintiff restraining defendants 5 to 9 from dealing with the suit property in any manner. The defendants No. 1 to 3 & 5 to 9 have appeared in the suit and contested the same by filing written statement as also replies to the aforesaid application on which I have heard the learned Counsel appearing for the parties.
(6) The defense set out by defendants 1 to 3 in their written statement is that the suit property was purchased with the joint funds of Shri Raja 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 I I.I.I 965 whereby he had bequeathed his right of l/3rd share in the property in equal share i.e. l/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 l/3rd share of the property equally. Under the aforesaid decree the defendant No. 1 received l/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 also appears to be no dispute between the parties that Suit No. 235/1969 was a suit for partition in which a preliminary decree was passed on 9.3.1972 and final decree was passed on 19.10.1972 whereunder the defendant No. 1 received as successor-in-interest I /3rd share in the said property and that the said l/3rd share is the present suit property. Reference may be made to paragraph 2,6 & 7 of the plaint wherein the plaintiff has admitted that the defendant No. 1 is one of the three successors-in-interest of Shri Raja Ram and when Raja Ram expired on 20.3.1969 the leasehold rights in the suit property were transferred jointly in the name of his three sons including the defendant No. 1 under Will dated 11.1.1965 and that all the three successors-in-interest including the defendant No. 1 possessed the said land.
(8) Accordingly, the ownership right of Raja Ram is admitted and when Raja Ram died on 20.3.1969 l/3rd share was succeeded by Wazir Chand, the father of the plaintiff, the defendant No. 1. However, according to the plaintiff,Wazir Chand, the defendant No. 1 succeeded to the aforesaid I /3rd property which is the suit property as Karta of the coparcenery comprising himself and his three sons, the character of the land being ancestral. The aforesaid stand taken by the plaintiff in his plaint appears to be prima-facie contradictory in view of the fact that when Wazir Chand succeeded to the I /3rd share of the property left behind by Raja Ram he succeeded to the same as successor-in-interest of his late father and therefore, under the law, prima fade, he would be deemed to be the absolute owner in respect of the said property. The aforesaid position is clear and apparent when reference is made to the provisions of the Hindu Succession Act, particularly Sections 4 & 8 there of which provide for statutory succession. I can do no better than to refer to the principles laid down in this respect by the Supreme Court in Commissioner of Wealth Tax, Kanpur v. Chancier Singh; . It is laid down in the said decision that under the Hindu Law the son would inherit the property of his father as Karta of his own family but the Hindu Succession Act has modified the rule of succession. It further states that the Act lays down the general rule of succession in the case of males. The first rule being that the property of a male Hindu dying intestate 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 the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu Law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be Huf property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and visa-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc."
(9) When the aforesaid principles of law laid down by the Supreme Court are applied to the facts of the present case, as the provisions of Hindu Succession Act, 1956 are applicable to the case in hand since Raja Ram died in the year 1969, it would be the natural conclusion that the son would succeed on the death of the father as absolute owner and the property would not be deemed to be ancestral property in his hand so as to entitle the grand son to have interest in it. In Yudhishter v. Ashok Kumar; the Supreme Court has observed that it would be difficult to hold that property which devolved on a Hindu under the Hindu Succession Act, 1956 would be Huf in his hands vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be Huf property.
(10) Under the circumstances when Raja Ram died since it was a case of intestate succession of the property that was succeeded to by his three sons including the defendant No. 1, it would be absolute in their hands and not ancestral and Raja Ram's grand-son could not have any interest therein. However, in the present case the position would be somewhat different in view of the fact that Raja Ram left behind a Will dated 11.1.1965 which is an admitted position. The aforesaid Will was given effect to in the earlier Suit No. 235/1969. When a person leaves behind a Will the wording of the Will itself is to be looked into to give meaning and effect to the intention expressed in the Will by the propounder of 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 coparcenery 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 case that when the property was bequeathed by Raja Ram amongst his three sons, the same was bequeathed as absolute owners thereof and not as ancestral properties.
(11) The fact however, remains to be examined as to whether Wazir Chand by any of his actions could have been deemed to have thrown the aforesaid property namely the suit land into the Huf hotch potch. Mr. Lekhi, the Counsel for the plaintiff, relying on the return filed by defendant No. 1 under the Urban Land (Ceiling & Regulation) Act which is Annexure I to an application filed by the plaintiff on 1.8.1996, submitted that the said action on the part of the defendant No. 1 clearly proves that the property was coparcenery. He further submitted that even if it is assumed to be not coparcenery then also in view of the action on the part of the defendant No. 1 in declaring the land to be Huf property, it should be interpreted that the defendant No. 1 intended to throw the aforesaid property into the Huf hotch potch and accordingly the plaintiff came to have interest accrued on the said property with the filing of the aforesaid return.
(12) I have given my considered thought to the submissions of the learned Counsel for the plaintiff as also the defendants. However, apart from filing the aforesaid return by the defendant No. 1 showing himself as karta of the joint Hindu family and the property as Huf property there is no other overt act or any other positive act from which it could be deduced that the defendant No. 1 has given up and relinquished his absolute interest in the suit property in favour of the HUF.
(13) Now the question is whether filing of the aforesaid return showing himself as karta of the Huf and the property as Huf could be considered as an act by which the plaintiff has thrown his absolute interest in the property to the common hotch potch. Under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 a person holding land in excess of the permissible limit is to submit a return and if there be any inaction and/or negligence in filing such a return the same attracts penal provisions. The law is stringent and strict in nature. Merely because a declaration has been made by filing a return to the effect that the land is Huf property would not change the character of the land under the law, It further appears that the Competent Authority did not accept the position that 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 defendent 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 favour 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 favour 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 not ancestral, he had an absolute discretion to deal with the said property according to his wish and desire but as and when he intends to transfer the said property he is required to obtain a permission from the Competent Authority as provided for under condition 4 of the lease deed.
(14) The Counsel appearing for the plaintiff submitted that since in the instant case no permission has been obtained, by defendant No. 1 before transferring by sale or exchange his interest in the land to the third party, from the Competent Authority within the time limit prescribed therein the aforesaid transfer is bad and against conditions of the lease deed which is a statutory lease deed. I have considered the contention of the learned Counsel for the plaintiff. However, on facts I find that Agreement to Sell has been arrived at between the defendant No. 1 and the defendants 7 &.9 and that the process of transfer is not yet completed inasmuch as no sale deed has yet been executed by defendant No. 1 in favour of defendants No. 7 & 9. Therefore, at this stage, it cannot be said that there is any violation of condition No. 4 of the lease deed as submitted by the learned Counsel for the plaintiff.
(15) The law with regard to grant of a temporary injunction is well settled. A Court is empowered to grant an injunction only when all the three pre-conditions namely - prima fade case, balance of convenience and irreparable injury are satisfied. No temporary injunction could be issued unless all the three essential ingredients namely - prima fade case, balance of convenience and irreparable injury are made out. If however, the injury that is going to be suffered by the plaintiff could be compensated in terms of money no injunction could be granted. If a party fails to make out any of the three ingredients he would also not be entitled to the grant of injunction and the Court would be justified in declining to issue the injunction. (See Hazrat Swat Shah Urdu Education Society v. About Saheb, Jt 1988(4) Sc 232.
(16) In Gujarat Bottling v. Coca Cola; the Supreme Court has held that in order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that. the defendant could be adequately compensated if the uncertainty were resolved in his favour at the trial.
(17) The counsel appearing for defendants No. 5 to 9 have stated that they are willing to deposit Rs. 40 lacs in Court against lifting of all restraints and that in the event of a decision on merits in the suit the successful party could have the said money with interest that accrues in the meanwhile.
(18) Since on appreciation of the rival cases of the parties I have come to a prima fade opinion that the defendant No. 1 is the absolute owner of the suit property and that the suit property cannot be said to be ancestral property as claimed by the plaintiff, I see no reason why the defendant No. 1 should not be allowed to deal with the property according to his wish and desire and therefore, I do not see any justification of passing a restraint order in the present case either against the defendants No. 1 to 3 or 5 to 9 restraining them from dealing with the suit property. It is common knowledge that the price for construction work has been going up every day and that there is also necessity of housing in and around Delhi. Therefore, considering the entire facts and circumstances of the case and the aforesaid factors I dismiss the application filed by the plaintiff under Order 39 Rules 1 & 2 and vacate the interim order passed by this Court on 26.5.1995 subject to the condition and as agreed to by the Counsel for the defendants No. 5 to 9 that the defendant No. 5 deposits in this Court a sum of Rs. 40 lacs. within six weeks in the name of the Registrar of this Court, which shall be kept in a fixed deposit for a period of 3 years at the first instance which would be paid after disposal of the suit to the successful party with interest that accrues in the meanwhile. In my considered view the aforesaid order passed would also protect the interest of. the plaintiff, in case ultimately if it is found that the plaintiff has an interest in the suit property. I also make it clear that any opinion expressed by me herein is my tentative view for the purpose of deciding the injunction application and shall not be held to be final and conclusive.