Rajasthan High Court - Jaipur
Lallulal & Others vs . Prakash Chand & Others on 18 April, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JAIPUR BENCH, JAIPUR
J U D G M E N T
Lallulal & others Vs. Prakash Chand & others
D.B.CIVIL SPECIAL APPEAL NO.29/1991
UNDER SECTION 18 OF
THE RAJASTHAN HIGH COURT ORDINANCE,1949.
Date of Judgment: April 18th, 2014
P R E S E N T
HON'BLE THE CHIEF JUSTICE MR.AMITAVA ROY
HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA
Mr.Ajeet Bhandari, Sr.Counsel, assisted by
Mr.Vaibhav Bhargava, for the appellants.
Mr.S.M.Mehta, Sr.Counsel, assisted by
Mr.D.S.Poonia
Mr.R.K.Agarwal, Sr.Counsel, assisted by
Mr.Yogesh Pujari
Mr.Alok Chaturvedi
Mr.Vimal Choudhary for the respective respondents.
BY THE COURT: (PER HON'BLE THE CHIEF JUSTICE)
The instant appeal witnesses a challenge to the judgment and order dated 1.7.1991, rendered by the learned Single Judge of this court in S.B.Civil First Appeal No.12/1982, preferred by the plaintiff-respondents herein, being aggrieved by the judgment and decree dated 23.9.1981 of the learned District Judge, Jaipur City, Jaipur, dismissing their suit for partition i.e. Civil Suit No.257/1979. By the decision impugned herein, the suit has been decreed. The appellant-defendants, thus, are in appeal.
We have heard Mr.Mr.Ajeet Bhandari, learned Sr.Counsel, assisted by Mr.Vaibhav Bhargava, appearing on behalf of the appellants and Mr.S.M.Mehta learned Sr.Counsel assisted by Mr.D.S.Poonia, Mr.R.K.Agarwal learned Sr.Counsel, assisted by Mr.Yogesh Pujari & Mr.Alok Chaturvedi and Mr.Vimal Choudhary, learned counsel for the respective respondents.
At the very outset, it is submitted at the Bar that meanwhile, the respondent No.6 Smt.Rukmani Bai daughter of late Ram Sahai had expired on 19.2.2014 leaving behind her following heirs and legal representatives (i) Kailash Narain Bhukhmari (Husband), (ii) Anil Bhukhmari (son), (iii) Smt.Urmila (daughter), (iv) Shushila (daughter) and (v) Nirmala (daughter) and (vi) Prathiba (daughter).
Mr.Bhandari, learned Senior Counsel for the appelalnt submits that he has instructions to represent the heirs and Legal representatives of the deceased respondent No.6 and, thus, they may be substituted in her place.
Ordered accordingly.
The fiercely contested legal tussle apart from being protracted over three decades, as the facts unfold, carry with it, the remnants of an earlier outing, which as is contrastingly debated, wields a definitive bearing on this adjudicative pursuit. The parties branch from the common ancestor Mahadev and are locked ever since in the lingering dissensus qua partition of the property involved. A brief outline of the rival pleadings in the suit is indispensable for appropriately appraising the evidence, oral and documentary, as well as the competing arguments, advanced.
Mahadev, the common ancestor of the parties, had a son named Damodar, who died issueless in the year 1909. He (Mahadev) also expired in 1947. Smt.Jadhav wife of Damodar as well expired in the year 1978. Meanwhile, on the demise of Damodar, Ram Sahai (defendant No.1) was adopted by Mahadev. He was married to Ram Pyari and through her, Hari Narain (defendant No.2) was born. On the death of Ram Pyari in the year 1929, Ram Sahai married Bhori and through their wedlock were born Nand Kishore (defendant No.4) and Lallu (defendant No.3). Hari Narain (defendant No.2) had three sons viz; Brijesh Kumar (defendant No.5) and Prakash Chand & Ashok Kumar (plaintiffs). Eventually, Bhori Devi also expired in the year 1978.
Prakash Chand and Ashok Kumar, both sons of Hari Narain, instituted the above-referred suit, pleading that the properties, set out in paragraph 3 of the plaint, were joint family property and those, described in paragraph 4, had been acquired after the death of their grand father Mahadev from the income of the joint family business. It was pleaded as well, that the properties detailed in paragraph 5 of the plaint were purchased by Smt.Jadhav wife of Damodar also with joint family funds, which after her death, had been pooled with the joint family property. According to them, Mahadev had been carrying on business of utensils. After his death, Ram Sahai became `Karta' of the joint Hindu family and he also purchased properties mentioned in paragraph 4 of the plaint for the Hindu Undivided Family (for short HUF). They claimed that their father Hari Narain was entitled to 1/4 share in the joint property and that they were consequently entitled to 1/4 share each in father's share and, thus, 1/16 share in the property. They prayed for partition of the suit property by metes and bounds and also for possession of their respective shares.
The defendants No.1, 3 and 4, as identified hereinabove, in their joint written statement, asserted that except a basement, mentioned in para 3 (kha) left by Mahadev, none of the other properties enumerated in the plaint were of the joint Hindu family and that the same had been acquired by Ram Sahai on his own and that these did not belong to the HUF. They pleaded further that the property mentioned in paragraph 5 of the plaint, had been purchased by Smt.Jadhav and Nand Kishore through their own resources. They averred that Hari Narain during his life time had filed a suit for partition against his father Mahadev and did get separated from the family. According to them, in that suit, Gopi Vallabh Natani and Vijay Lal Katta were appointed as Arbitrators and Hari Narain eventually gave up his claim, he having been provided with his share in the joint family property.
The answering defendants maintained that on the institution of such suit, the joint Hindu family ceased to exist and that Hari Narain having received his share in the properties thereof, the plaintiffs thereafter were bereft of any right therein.
Defendant No.2 Hari Narain in his separate written statement affirmed that Mahadev had a flourishing business, which he conducted in two shops and that he purchased another shop also in the name of Ram Sahai and did construct a house and made additions and alterations. This defendant admitted however that after the death of Mahadev, he (Hari Narain) had filed a suit for partition against his father Ram Sahai but on account of intervention of Gopi Vallabh Natani and Vijay Lal Katta, he then did not pursue the dispute. He, however, confirmed that the properties mentioned in paragraphs 3, 4 and 5 of the plaint, did belong to the joint Hindu family and also endorsed the claim of partition, as registered by the plaintiffs. On the pleadings of the parties, the learned trial court framed the following issues:
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Subsequent thereto, the plaintiffs examined Prakash Chand (PW 1) and Narain Lal (PW 2). The defendants produced Ram Sahai (DW 1), Chhutan Lal (DW 2) and Kalyan (DW 3). Hari Narain also examined himself as D.W.2/D-2. The parties also adduced documentary evidence. The learned trial court i.e. District Judge, Jaipur City, Jaipur, by judgment and order dated 23.9.1981 dismissed the suit. It held inter alia that Mahadev had left only a basement and one storeyed house situated at Natanio Ka Rasta and that rest of the properties were the personal acquirements of Ram Sahai. It determined that the properties of Mst.Jadhav were also purchased in his name by Ram Sahai and were not constituents of the joint family property. Apart from holding that it had not been proved that any property was purchased by income left by Mahadev, the factum of institution of his suit for partition by Hari Narain, appointment of arbitrators, award by them and receipt of a sum of Rs.9,999/- by Hari Narain, in lieu of his share in the joint family property for which he executed a letter Ex.A.7, was recorded. It was held as well that the suit was time barred, as the severance in the joint family status had occurred in 1947 and that the same (suit) had been filed after more than twelve years.
The learned Single Judge in the appeal filed by the plaintiffs, as the impugned judgment and order would evince, however reversed this determination and decreed the suit. In deciding issue No.5, the learned Single Judge, on an evaluation of the rival pleadings as well as the arguments advanced, observed that the burden to prove that the present suit was not maintainable in the face of the earlier suit instituted by Hari Narain claiming his share in the joint Hindu family, was on the defendants. Referring to the written statement, it was observed that the defendants had not mentioned about the number of the earlier suit or the date on which the same had been withdrawn. That there was no mention regarding Ex.A.7, the so called receipt of the amount of Rs.9,999/- received by Hari Narain in lieu of his share in the HUF, was recorded as well. Reference was made to Ex.A.1, the plaint filed in the earlier suit containing the averment of Hari Narain seeking to obtain partition thereof and prayer for grant of his share therein.
The learned Single Judge confirmed that the properties mentioned in Schedule-I of the plaint of the earlier suit were also included in the suit properties of the present suit. The application Ex.A.6 signed by both Hari Narain and Ram Sahai for appointment of Gopi Vallabh Natani and Vijay Lal Katta as arbitrators in the earlier suit and bearing as well the thumb impression of Mst.Bhori and signatures of their learned counsel, was noticed. That the order dated 9.4.1947 passed by the learned court permitting the matter to be decided by the arbitration fixing the next date of the suit dated 28.4.1947 and its observation on the next date i.e. 28.4.1947 that the suit was valued more than Rs.5,000/- and was beyond its pecuniary jurisdiction, was noted as well. The learned Single Judge also considered that by the order dated 28.4.1947, the next date of the suit was fixed as 14.7.1947 to await the decision of the arbitrators and that on 31.5.1947, the file was presented before the court by the Reader informing that the matter had been compromised and that, therefore, the suit ought to be dismissed. It was noted as well that by the order dated 31.5.1947, the suit was dismissed recording inter alia that Hari Narain as well as Gopal Lal, Advocate of the defendant, had informed that the matter had been compromised and, thus, the suit ought to be dismissed.
The learned Single Judge took note of the application Ex.A.2 filed on 31.5.1947 by Hari Narain stating that Vijay Lal and Gopi Vallabh, the arbitrators, had given their award and that he, therefore, had no dispute with the defendants and had prayed for dismissal of the suit. The learned Single Judge, however, observed in this regard that the application did neither disclose the decision of the arbitrators nor the award. It did not mention either about Ex.A.7, the receipt issued by Hari Narain for having received a sum of Rs.9,999/- in lieu of his share in the HUF property, as insisted by the defendants. That the plaintiffs in their evidence also did not mention anything about the suit but Hari Narain in his cross examination had admitted his signatures on the plaint thereof, was recorded. The learned Single Judge noticed that the defendants had not confronted the plaintiffs' witnesses with the Ex.A.7 nor did they comment on the claimed signature of Hari Narain on that document. The testimony of P.W.2 was held to be irrelevant in this regard.
Vis a vis the evidence of P.W.1 Ram Sahai, the learned Single Judge recorded that he being aged 80 years could not say anything about the signature or the handwriting on Ex.A.7 on account of his failing eye sight. That this witness, however, claimed to have paid an amount of Rs.10,000/- on account of his (Hari Narain) share in the HUF property, was mentioned. His testimony to the effect that both the arbitrators had signed Ex.A.7, was not accepted, being incorrect. The admission of the witness P.W.1 that there was no entry in the account books about payment of Rs.10,000/- as claimed by him, was recorded. His statement that the account books had been disposed-of and were non-existent then, was noticed as well. Though this witness claimed to have taken loan for paying this amount of Rs.10,000/-, the learned Single Judge observed that the essential particulars with regard thereto had not been disclosed. The evidence of D.W.2 Chhutan Lal was not dilated upon, as his evidence on the aspect of handwriting of Hari Narain had been disbelieved by the learned trial court. The testimony of D.W.3 Kalyan seeking to prove the signature and handwriting of Hari Narain on Ex.A.7 was not given any weightage, as the said document did not bear his signature. That the witnesses to this document had not been produced presumably being not available or having expired, was noted too.
Vis a vis the deposition of D.W.2/D-2, Hari Narain, the learned Single Judge recorded that Gopi Vallabh and Vijay Lal had been appointed as arbitrators but did not give any award. The statement of this witness that he withdrew the suit as advised by the arbitrators, was noticed. The denial of this witness of having received a sum of Rs.ten thousand, was also noted. The learned Single Judge also took note of the statement of Hari Narain that he did not receive any share on partition of the joint Hindu property and that Ex.A.7 had neither been written nor signed by him. That this witness had emphatically denied the suggestion that the arbitrators awarded a sum of Rs.10,000/- in lieu of partition and that thereupon, he had withdrawn the suit, was recorded. The learned Single Judge also noted that the parties had omitted to examine the handwriting expert to opine on the handwriting and signatures on document Ex.A.7 claimed by the defendants to be that of Hari Narain. On a consideration of all these aspects, as disclosed by the evidence on record, the learned Single Judge concluded that it would be hazardous and unsafe to compare the signatures on the document Ex.A.7 with the admitted signatures dehors the assistance and opinion of the handwriting expert. It was, thus, held that the defendants had failed to discharge their burden to prove that by filing the earlier suit, Hari Narain had obtained on the basis thereof, his share in the HUF property rendering the present suit not maintainable in law. The issue No.5 was, thus, decided in negative against the defendants.
The learned Single Judge held further that on the institution of earlier suit, even if severance of the joint family status had ensued as claimed, the properties of the HUF did continue to remain joint in absence of any partition effected by metes and bounds. The plea of want of jurisdiction of the court in the earlier suit, as raised by the plaintiff-appellants was, however, not entertained. Qua the aspect of limitation, the learned Single Judge, being of the view that in Hindu Law, on birth, a son assumes his right in the ancestral property independent of that of his father and that, thus, the subsequent suit for partition could be instituted, held that in terms of Article 110 of the Limitation Act, it was maintainable qua the plaintiffs, the same having been filed within a period of twelve years from the knowledge of plaintiff No.2 Ashok Kumar of his purported exclusion from the joint Hindu family property on the attainment of his majority in the year 1978.
Vis a vis the issue Nos.1, 2 and 3, the learned Single Judge opined that in view of the answer to issue No.5, those had been rendered insignificant. On the aspect of the joint Hindu family status of the property, the learned Single Judge recorded that as admitted in evidence, Mahadev had been carrying on business of utensils and after his death, Ram Sahai had assumed the same. That Ram Sahai as the `Karta' of the joint family, was required to prove the fact that additions to the ancestral property had been out of his personal income or that he had some separate business or separate income from which he had purchased the same either in his name or in the name of Smt.Jadhav and that he had failed to discharge his burden, was noted. The learned Single Judge was of the view that as these properties were in the hotchpot, those had acquired the status of joint Hindu family property and that as no partition of property by metes and bounds had eventuated, these had remained joint. The issues No.1, 2 and 3, thus, were also decided in favour of the plaintiffs. Resultantly, the suit was decreed.
Mr.Bhandari, learned Senior Counsel, appearing for the appellants, has persuasively argued that with the commencement of the Hindu Succession Act, 1956 (for short hereinafter referred-to as the Act of 1956), any property devolving on a Hindu on the death of his father, did not constitute HUF property consisting of his own branch including his sons. A son born in the joint family did not have any right in the joint family property and, thus, the suit filed by the grand sons in the case in hand, amongst others, against their grand father and father is patently unsustainable in law and on facts. Moreover, as grand sons are not heirs within the Classes enumerated in Schedule-I to the Act of 1956, the plaintiffs herein had no right whatsoever to seek partition of the joint family property, as claimed and, therefore, their suit ought to have been adjudged non est. Contending that in the facts and circumstances of the case, Section 6 of the Act of 1956 has no application, the learned Senior Counsel insisted that as no question of survivorship was comprehensible, the grand father and father of the plaintiffs being alive, their suit cannot be saved on this measure as well. Mr.Bhandari has urged that the question of maintainability of the suit in this premise being per se one of law, the appellants cannot be prohibited from raising the same in the present appeal, even if not pleaded in the written statement. Further, as this issue had been dealt with by the learned Single Judge by acknowledging a son's right in the joint family property by birth while deciding the issue of maintainability of the suit, this question is assuredly open to be examined by this forum. Referring to the pleadings and the evidence on record, Mr.Bhandari has urged that it would be apparent therefrom that Hari Narain had instituted a suit in the year 1946 seeking partition of the joint family property and securing his share therein and that with the intervention of the arbitrators, the matter was amicably settled following which he did receive an amount of Rs.9999/- and had executed a document dated 14.4.1947 (Ex.A.7). Learned Senior Counsel maintained that in the face of such overwhelming evidence on record, it had been established beyond doubt that not only with the institution of the suit by Hari Narain, the joint family status of the property had ceased to exist, he having received an amount of Rs.9999/- in lieu of his share therein, the suit filed by his sons was clearly not maintainable in law and was misconceived.
Mr.Bhandari argued as well that as admittedly, the earlier suit had been withdrawn by Hari Narain on receipt of his share in the joint family property without obtaining any permission to file a fresh suit, on this count as well, the issue No.5 ought to have been decided in favour of the defendants. That this consequence in law would follow even assuming that the document Ex.A.7 had not been proved, was urged. Qua issues No.1, 2 and 3, the learned Senior Counsel has argued that not only these are of formidable significance, in addition to issue No.5, he urged as well that in absence of any evidence that the properties purchased by Ram Sahai either in his name or in the name of Smt.Jadhav had been acquired by the assets left by Mahadev, those could not have been construed to be joint family property, more particularly as admittedly the plaintiffs were not in possession thereof. The finding of the learned Single Judge that these properties had been brought into the family hotchpot, is against the weight of the evidence, he insisted. Mr.Bhandari maintained further that as the joint family status of the property had ceased with the institution of the earlier suit in the year 1946, the subsequent suit filed in the year 1979 even on invocation of Article 110 of the Limitation Act, 1963 was apparently barred by time.
In buttressal of his arguments, Mr.Bhandari has placed reliance on the following decisions: (i) (1896) 3 SCC 567; (ii) AIR 1987 SC 558; (iii) 2008(3) SCC 87; (iv) 144 ITR 18 (AP); (v) (1977) 4 SCC 184; (vi) (2012) 2 SCC 161; (vii) (2011) 9 SCC 451; (viii) 1995(2) WLC 140; and (ix) 1993(1) WLC 496.
Mr.Agarwal, as against this, has argued that not only the plea qua the maintainability of the suit by the plaintiffs as grand sons against their grand father and father, is not entertainable in the present appeal in absence of any reference thereof in the written statement, this cavil, even otherwise, is fallacious on face of the record in the teeth of Sections 4, 6 and 8 of the Act of 1956 and the Schedule thereto. Qua the earlier suit filed by Hari Narain, the learned Sr.Counsel argued that the proceedings thereof in any view of the matter for lack of pecuniary jurisdiction of the learned Civil Judge as recorded in its order dated 28.4.1947 ought to be reckoned as non est for all purposes and, thus, is of no relevance whatsoever. Referring to the orders dated 28.4.1947, 31.5.1947 and 14.7.1947 passed in that suit, Mr.Agarwal has insisted that in absence of either any award said to have been made by the arbitrators or the terms and conditions of the compromise between the parties and any recorded acknowledgement towards full and final decision of Hari Narain's claim, the proceedings thereof pose no bearing whatsoever on the issues involved in the subsequent suit. Further, as neither the particulars of the suit and most importantly, Ex.A.7 had been furnished/adverted-to in the written statement of the defendants nor the plaintiffs' witnesses had been confronted with the said document, the learned Single Judge was perfectly justified in discarding the same, he urged. According to him, even otherwise, not only the purported receipt Ex.A.7 did not form a part of the record of the earlier suit, though antedated to the date of disposal thereof, D.W.1 Ram Sahai failed to prove the same as well. Not only his deposition that the said document contained the signatures of the arbitrators, was patently wrong, there were irreconcilable contradictions as well with regard to payment of Rs.10,000/- allegedly made by him to Hari Narain, demolishing this document. Mr.Agarwal, thus, argued that even if the institution of the suit for partition by Hari Narain is a matter of record, in absence of any legally cognizable proof of disposal thereof by providing Hari Narain his share of the joint family property by effecting partition of the same by metes and bounds, there could not be any legal bar to the filing of the suit by his sons. Mr.Agarwal asserted as well that mere institution of a suit for partition by one of the coparceners ipso facto does not change the character of the joint family property till there is a partition thereof by metes and bounds and, thus, on this count as well, the earlier suit is not decisive to nonsuit the plaintiffs. That in absence of any compromise between the parties recorded in the earlier suit, the plea against maintainability of the subsequent suit dehors permission therefor as envisaged under Order 23 Rule 3 C.P.C., is not tenable as well, was urged. No bar of resjudicata is also attracted, he insisted. Following decisions were relied upon: (i) State Bank of India vs. Ghamandi Ram(dead) through Gurubax Rai(1969) 2 SCC 33; (ii) Ratnam Chettiar vs. S.M.Kuppuswami Chettiar (1976) 1 SCC 214; (iii) M.L.Subbaraya Setty (dead) by LRs. vs.M.L.Nagappa Setty (dead) by LRs. (2002) 4 SCC 743; and (iv) Devasahayam vs. P.Savithramna (2005) 7 SCC 653.
Mr.Mehta, learned counsel for the respondent No.4, has urged in reiteration that cognizance of the plea against maintainability of the suit in hand by grand sons and son against the grand father and father ought not to be taken in the instant appeal in absence of assertion thereof in the earlier forums or in the memorandum of appeal. Further, as no issue in this regard had been framed in the suit, such a belated contention ought not to be entertained, he urged. The learned Senior Counsel dismissed Ex.A.7 with particular reference to the purported signature of Hari Narain thereon and his endorsement of disclaimer, to be a manipulated document, apart from not being proved in the suit in accordance with law. Mr.Mehta argued that the conclusion of the learned Single Judge vis a vis this document is based on the materials on record and calls for no interference. Learned Senior Counsel urged as well that even if the institution of the suit by Hari Narain is expressive of his unequivocal intention to effect severance of the joint family status, the joint family property continued to be joint in absence of any partition between the parties. He insisted as well that the proceedings of the earlier suit were void due to lack of jurisdiction of the learned Civil Judge, Jaipur. Mr.Mehta urged that not only in the face of the decision on issue No.5, the issues No.1, 2 and 3 had been rendered inconsequential, even otherwise, the overwhelming materials on record do demonstrate that the suit property had been purchased from the income of the joint family fund and did constitute the joint family property and, thus, the defendants having failed to prove that the same had been acquired by the personal funds of Ram Sahai, the suit for partition was maintainable and was rightly decreed. That as in law, the possession of one of the co-owners is on behalf of all the owners and possession by some to the exclusion of others, is not contemplated in absence of any partition of the joint family property by metes and bounds, the bar of limitation is not attracted, he asserted. Reliance has been placed on the following decisions of this court in (i) Kamakshi Builders vs. Ambedar Educational Society (2007) 12 SCC 27; (ii) Bachhaj Nahar vs. Nilima Mandal (2008) 17 SCC 491; (iii) Azhar Sultana vs. B.Rajamani (2009) 17 SCC 27; (iv) Common Cause vs. Union of India (2004) 5 SCC 222; (v) Union of India vs. Ibrahim Uddin (2012) 8 SCC 148; (vi) Kirpal Singh vs. Mst.Kartaro AIR 1980 Raj.212; (vii) Hanuman vs. Hari Ram (1986) 1 WLN 677; (viii) O.Bharathan vs. K.Sudhakarn AIR 1996 SC 1140; (ix) (2002) 9 SCC 688; (x) Kiran Singh vs. Chaman Paswan AIR 1954 SC 340; (xi) Devasahayam vs. P.Savithramna(2005) 7 SCC 653; (xii) Mallesappa Bandeppa Desai vs. Desai Mallappa alias Mallesappa AIR 1961 SC 1268; and (xiii) Janaki Pandyani vs. Ganeshwar Panda (dead) by LRs. (2001) 10 SCC 434.
Mr.Vimal Choudhary, learned counsel for the respondent No.1, while endorsing the arguments advanced on behalf of the respondents, argued in particular that Ex.A.7 was not decisive at all, qua the issues seeking adjudication.
We have extended our thoughtful consideration to the rival pleadings, the evidence on record as well as the contentious assertions made. Having regard to the definitive bearing of the determination on the impeachment of the maintainability of the suit, asseverated to be impermissible in the face of the Act of 1956, this facet of the debate demands precedence in scrutiny. Noticeably, this remonstrance was neither registered either in the written statement of the appellant-defendants nor pursued at the trial. It was not insisted upon as a potent plea before the learned Single Judge as well to nonsuit the respondent-plaintiffs. Whereas the learned counsel for the respondents, thus, have insistently argued that such an assailment in this inert backdrop ought not to be entertained in the Special Appeal for the first time, Mr.Bhandari has urged that the impugnment being founded on fundamental principle of law, it ought to be assayed by this forum. Learned counsel for the parties have exchanged a host of authorities in this regard, a brief reference whereof would not be out of place.
The Hon'ble Apex Court in Union of India vs. Ibrahim Uddin (supra) reiterated the pristine rule of pleadings and proof that a court cannot travel beyond pleadings and no party can lead evidence on any issue not raised therein and if the same is adduced or a finding of fact is recorded on the basis thereof, it ought to be ignored.
That a plea neither pleaded nor proved and on which no issue had been framed, ought not to be allowed to be raised, was held in no uncertain terms by the Hon'ble Apex Court in Azhar Sultana (supra).
To the same effect is the exposition in Kamakshi Builders (supra). Their Lordships while approving this proposition recalled the decision of the Hon'ble Apex Court in Devasahayam (supra) in which the plea pertained to want of jurisdiction of a civil court to try a suit covered by the Rent Control Legislation. As neither this contention had been earlier raised and an issue had been framed thereon, it was not permitted to be pursued.
In Bachhaj Nahar (supra), their Lordships observed that it is fundamental that in a civil suit, relief can only be granted only with respect to the prayers made in the pleadings, which is further circumscribed by the facts like court fee, limitation, parties to the suit, grounds barring relief i.e. res judicata, estoppel, acquiescence, non-joinder of cause of action or parties and proof. In the contextual facts, their lordships disapproved the decision of the High Court and held that it could not have granted the relief of converting a suit for title into one for enforcement of easementary right in absence of any claim by the plaintiffs based on such right.
It was held in Common Cause (supra) that a point not argued before a court would be deemed to have been given up and cannot be permitted to be raised later.
Per contra, the Coordinate Benches of this court, amongst others, in Jagannath Joshi vs. State of Rajasthan 1993(1) WLC (Raj.) 496 and Pukh Raj Mehta vs. State of Rajasthan 1995(2) WLC (Raj) 140 had opined that a legal point or a pure question of law, which does not require any factual investigation but going to the root of a case, can be permitted to be raised at any time.
A perusal of the impugned judgment and order demonstrates that this plea, though in categorical terms in the appeal thereat in the form and essence, as presently projected, had not been taken at that stage, the learned Single Judge however while deciding issue No.5 as well as one on limitation, did dwell upon the significant aspects bearing on the joint family status, its properties and the right of a son of a HUF qua the same under the Hindu Law. The learned Single Judge did as well take note of the submissions made on behalf of the plaintiffs pertaining to the acquisition of a right of a son on his birth in the ancestral property belonging to the HUF independent of his father.
Be that as it may, having regard to the protracted litigious confrontations of the parties, it is considered expedient to deal with this issue of considerable moment as it is, on merit.
As has been authoritatively held by the Hon'ble Apex Court in State Bank of India vs. Ghamandi Ram (Dead) through Gurbax Rai (supra) that as per the Mitakshara School of Hindu Law, all property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi corporate capacity. The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person; second, such descendants can at any time work out their rights by asking for partition; third, till partition, each member has got ownership extending over the entire property, conjointly with the rest; fourth, as a result of such co-ownership, the possession and enjoyment of the properties is common; fifth, no alienation of the property is possible, unless it be for necessity, without the concurrence of the coparceners; and sixth, the interest of a deceased member lapses on his death to the survivors. That a coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption, the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter, had been propounded.
A Hindu Coparcenary is a body, comprised of the joint family and include only those persons, who by birth acquire interest in the joint coparcenary property. As would be adverted to hereinafter, prior to the Hindu Succession (Amendment) Act, 2005, the coparcenary comprised of three generations, next to the holder in unbroken male descendants. A Hindu female before the aforestated legislative intervention was, thus, not a coparcener and even the right to reunite was limited under the Hindu Law to the males.
In Commissioner of Wealth Tax vs. Chander Sen, (1986) 3 SCC 567, the Apex Court dwelt upon the impact of Section 8 of the Act of 1956 on the time tested canon of Hindu Law that the moment a son is born, he gets a share in the father's property and becomes a part of the coparcenery and right accrues to him not on the death of his father or inheritance from him but with the incident of his birth and that whenever the father would get a property from whatever source, either from the grand father or any other source, be it separated property or not, he would have a share in that and it would become part of the joint Hindu family of his son and grand son and other members, which would constitute the joint Hindu family with him. Their Lordships, while referring to the preamble of the Act, which proclaimed that the enactment was to codify the law relating to succession among Hindus and the overriding mandate over any text, rule or interpretation of Hindu Law or any custom or usage as per the Hindu Law in force immediately before the commencement of the Act as contained in Section 4 did notice as well Section 6 dealing with the devolution of any interest in the coparcenary property mandating that when a male Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. That proviso indicated that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class, who claimed through such female relative, the interest of the deceased in Mitakshara coparcenary property, would devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship, was too taken note-of. The predication of Section 19 of the Act that if two or more heirs succeed to the property of an intestate, they would take the property per capita and not per stirpes and as tenants-in-common and not as joint tenants, was noticed as well. Referring to Section 8 and the scheme of the Act, it was held that the property of a father who dies intestate devolves on his son in his individual capacity and not as `Karta' of his own family and that in that eventuality, the son's son gets excluded, he being not a Class I heir enumerated in the Schedule to the Act of 1956. It was, thus, held that when the Schedule did indicate the heirs of a Hindu dying intestate, it was not possible to conclude that when the son inherits the property in a situation contemplated by Section 8 of the Act of 1956, he takes it as a `Karta' of his own undivided family. Their lordships held that even the right of a son's son in his grandfather's property during the lifetime of his father, which existed under the Hindu Law as in force before the Act, was not saved expressly thereby and, therefore, the earlier interpretation of Hindu Law giving a right by birth in such property ceased to have effect.
The view taken by the Madhya Pradesh High Court in Shrivallabhdas Modani vs. CIT, (1982) 138 ITR 673 (MP) that the property which devolved on a Hindu on the death of his father intestate after coming into force of the Hindu Succession Act, 1956, did not constitute HUF property consisting of his own branch including his sons, was approved.
Noticeably in the facts involved in this case, the son had separated by partition from his father and was, thus, in terms of Section 8 of the Act of 1956 held that he, on his father's death inherited his father's assets in his individual capacity and not as `Karta' of HUF. Incidentally, the question that had fallen for their Lordships' consideration was that whether the income or an asset which a son inherits from his father, when separated by partition, should be assessed as income of the HUF of the son or his individual income. The analysis of the provisions of the Act understandably was in this textual backdrop.
That a property devolving on a son under Section 8 is not taken by him as `Karta' of his own undivided family but in his individual capacity, was reiterated in Yudhishter vs. Ashok Kumar, AIR 1987 SC 558, by the Hon'ble Apex Court. Referring to Section 8 of the Act of 1956, their Lordships, however, observed that Section 8 of the Act did chart a departure from the primary rule of Hindu Law that normally whenever a father gets the property from whatever source or from grand father or any other source, be it separated property or not, his son should have a share in that and it would become a part of the joint Hindu family of his son and grand son and other members, who formed joint family with him.
In CWT vs. Mukundgirji, (1983) 144 ITR 18 (AP), the quaere before the Apex Court was that whether in the facts and circumstances of the case, the property devolved on the assessee on his father's death, was assessable as of the individual or of HUF. The facts disclosed that the business assets had, prior to the proposed assessment, been divided amongst the sons of the deceased but the assessee did not include the property in his share in his individual tax return and instead, filed a separate return in the status of HUF. Their lordships while observing that Section 6 of the Act dealt with devolution of an interest in the coparcenary property, in the facts involved, held that it had no application, as the grand father of the assessee on the date of his death, was not a member of the coparcenary. It is in this context that it was held that the property which devolves on a heir mentioned in Class I of Schedule, under Section 8 did constitute his absolute property and that his sons did not have any right by birth therein and, therefore, cannot claim any share or sue for partition of such property.
The Apex Court in Commissioner of Income Tax vs. Ratanlal, 138 ITR 681, was also seized with a situation where the assessee Ratan Lal and his father Nathulal constituted a HUF. There was a partition of the joint family by which both separated and they constituted a partnership Firm. The issue that eventually fell for consideration was whether the sum of Rs.34,355/- being the credit balance of the assessee's deceased father did constitute the assessee's separate and individual property. In the facts involved, it was reiterated that the property of a Hindu dying intestate after coming into force of the Hindu Succession Act, 1956, would devolve on his heirs in accordance with Section 8 thereof and the successors would inherit the property in their individual capacity and not as representing their own HUF. It was held that the jurisdictional Appellate Tribunal was not right in holding that the sum of Rs.34,355/- being the credit balance of the assessee's deceased father did not constitute his separate and individual property.
In Additional Commissioner of Income Tax vs. P.L.Karuppan Chettiar (supra), the contextual facts were that one Palaniappa Chettiar alongwith his wife and son and their daughter in law constituted a Hindu Undivided family. There was a partition under which Palaniappa Chettiar was allotted certain properties as his share and he got separated. Thereafter, his son, his wife & their children constituted a Hindu Undivided family, which was the assessee in the case. Palaniappa Chettiar died on 9.9.1963 leaving behind his widow and son, as referred to hereinabove, who was the `Karta' of the assessee Hindu Undivided family. His widow and son succeeded to his properties and divided the same between themselves. The assessing officer having included the income from the properties inherited by the son from Palaniappa, the assessee contended that the said properties did not belong to the Hindu Undivided family but only to the son as an individual. The learned Appellate Tribunal held that the properties did not form part of the joint family property and the income therefrom was not assessable in the hands of the joint family consisting of himself, his wife, his sons and other members. Their Lordships of the Madras High Court held that no Hindu Undivided family with regard to the property received by the son on the death of Palaniappa could be visualized or envisaged.
The Madhya Pradesh High Court in Shrivallabhdas Modani (supra) in answering the question as to whether the income of the so called HUF consisting of assessee and his wife, was liable to be assessed in the hands of the assessee as an individual and not in the hands of the HUF, noticed that in 1962, there was partition of the family property between Shrivallabhdas Modani (assessee) and his sons, where after he (assessee), his wife and unmarried daughters constituted a HUF. On the death of the assessee's father i.e. Shri Gokal Chand, he (assessee) succeeded to his property which he assimilated into the common hotchpot of his HUF consisting of himself, his wife and sons. Their Lordships sustained the finding of the learned Appellate Tribunal observing that since no coparcenary subsisted between the assessee and his sons, the property received by him on his father's death, could not be blended with the property, which had been allotted to his sons in the year of partition i.e. 1962 and, thus, it did not constitute the HUF property consisting of his own branch including his sons. In arriving at this conclusion, their Lordships did take note of the fact of the determination made by the Allahabad High Court in CIT vs. Ram Rakshpal Ashok Kumar, (1964) 67 ITR 164, adverting to Section 8 of the Act of 1956 to the effect that the income from the assets inherited by a son from his father from whom he has separated by partition, cannot be assessed as the income of the Hindu Undivided Family of the son. The bearing on existence and on continuance of a coparcenary under Section 6 of the Act as well as the extinction thereof effectuated by partition amongst the coparceners is, thus, demonstratively patent in the face of the authorities recited hereinabove.
The decision of the Apex Court in Bhanwar Singh vs. Puran, (2008) 3 SCC 87, in juxtaposition to the above, witnesses facts wherein one Bhima, owner of the property involved died leaving behind his son Sant Ram and three daughters. The property was then partitioned amongst the children and the names were mutated in respect of their 1/4th shares. Sant Ram subsequently transferred a part of his property by way of mortgage and thereafter by sale in favour of the respondents therein. On the premise that the property of Bhima was joint family property, Sant Ram's son filed a suit for setting aside the above alienations on the ground that those had been effected without any legal necessity therefor. Their lordships, with reference to Section 6 of the Act, held in the facts involved that the said legal provision was not attracted in the face of the partition of the property amongst the heirs of Bhima following which Sant Ram, being the owner of his share, was authorised to transfer the same. As the contextual facts evince cessation of the joint family property, it was held with reference to Sections 8 and 19 of the Act that all the heirs and legal representatives of Bhima succeeded to his interest as tenants in common and not as joint tenants. In reaching this conclusion, their Lordships amongst others, recalled the decision of the Apex Court in Sheela Devi vs. Lal Chand, (2006) 8 SCC 581 to the effect that Section 6(1) of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants but the proviso appended thereto creates an exception. That Section 6 was an exception to the general rules of succession, was noted as well. Their Lordships though had noticed the advent of the Hindu Succession(Amendment) Act, 2005 meanwhile, the succession having occurred in the year 1989, it was observed that the amendment had no application. Application of Section 6 otherwise prescribing the mode of devolution of interest in the coparcenary property of a Hindu, thus, stood excluded in the singular facts & circumstances of the case authenticating partition of the properties involved.
The Hindu Succession Act, 1956, a parliamentary enactment, as its name suggests when read with its preamble ordains it to be a codified law relating to succession among Hindus. The Act has ushered in a slew of changes in succession among Hindus defining and conferring rights, which hitherto were unknown in relation to women's properties. Till the middle of 19th Century, the Hindu Law of Succession in its traditional form and substance remained in vogue in the Country without any reform and the Mitakshara law as well as the Dayabhaga law prevailed in various parts of India. Joint and undivided family had been a sustained concept of Hindu society. The joint family traces its origin to the ancient patriarchal system. The law of inheritance signifies rules to govern devolution of property on the death of a person solely on account of their relationship to the former. The enactment, however, does not interfere with the special rights of those, who are members of Mitakshara Hindu coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The legislation introduced an uniform and comprehensive rule of inheritance making it applicable to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act does not regulate testamentary disposition, who are governed by the provisions of the Indian Succession Act, 1925. Whereas Section 4 postulates overriding effect of the Act qua any text, rule or interpretation of Hindu law or any custom or usage in force immediately before the commencement thereof or any other law in force inconsistent therewith, Section 6 deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. Significantly, the retention of the Mitakshara coparcenary property was to the exclusion of the females, which implied that they could not inherit in ancestral property alike their male counterparts. To remove this perceived unequal treatment to the female constituents, the legislature enacted the Hindu Succession (Amendment) Act, 2005 by according equal rights to the daughters in the Mitakshara Coparcenary property identical to the sons. By this amendment, amongst others, Section 23 of the parent Act putting off the right of a female heir of a Hindu intestate to claim partition of a dwelling house wholly occupied by a joint family until the male heirs chose to divide their respective shares therein and to limit her right to one of residence, is deleted.
To reiterate, Section 8 postulates the general rules of succession in the case of males dying intestate, restricting the devolution of the property to the heirs of Class I, Class II, agnates and cognates, in that order, one category excluding the other. Section 19 provides that if two or more heirs succeed together to the property of an intestate, they would take the property, save as otherwise expressly provided in the Act per capita and not per stirpes, as tenants-in-common and not as joint tenants. The scheme of the legislation, however, as would be otherwise patent, does not per se exclude the devolution of interest in coparcenary property. With the Amendment Act of 2005, not only a daughter of coparcener by birth would become a coparcener in her own right in the same manner as a son, on and from the commencement thereof in the property but also, as if she had been a son, she would have the same rights and suffer the same liabilities in the coparcenary property as she would have had on being subjected to, if she had been a son. On the death of a Hindu after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, would devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship so much so that the coparcenary property would be deemed to have been divided as if a partition had taken place and inter alia(a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, would be allotted to the surviving child of such pre-deceased son/daughter. As per the Explanation appended to sub-section (3) of Section 6, the interest of a Hindu Mitakshara coparcener is deemed to be a share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Sub-section (5) mandates that Section 6 would not apply to a partition effected before 20th December, 2004. The expression partition as per the Explanation appended means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of court.
The above narrative in our comprehension authenticates that as per the authoritative texts and treatises on Hindu Law, a son before enactment of the Act by his birth became a part of the coparcenary governed by the Mitakshara School of law and his right accrued to him not on the death of his father but with his birth simpliciter irrespective of the source from which his father got his property so much so that the same (property) would form a part of the joint Hindu family of his and other male members to constitute the same with him. With the legislation of the Act, though devolution of interest in the coparcenary property was secured by Section 6 thereof, the general rule of succession in case of a male Hindu dying intestate was set out in Section 8 thereof. Section 6 of the Act as initially designed, had been in the following terms:
6.Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
A plain perusal of this provision would testify that in terms thereof, on the death of a male Hindu after the commencement of the Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property would devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Explanation 1 exposited that the interest of a Hindu Mitakshara coparcener shall be deemed to be, for the purpose of the Section, the share in the property that would have been allotted to him, if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not.
With the amendment to the Act in the year 2005 in conformity with the Statement of Objects and Reasons therefor, Section 6 stood amended to endow the daughter with the right by birth in the same manner as the son. She was also made subject to the same liabilities with respect to the coparcenary property alike a son. The amendment, however, ordained that on the death of a Hindu after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law would devolve by testamentary or intestate succession, as the case may be under the Act and not by survivorship so much so that coparcenary property would be deemed to have been divided as if a partition had taken place and amongst others, his daughter would be entitled to the same share as is allotted to a son. Logically thus, in terms of sub-section 3 of Section 6 on the death of a male Hindu after the Act, 2005, his interest in the property of a joint Hindu family governed by Mitakshara Law, if he dies intestate, would be regulated by Section 8 of the Act and not by survivorship with the legal fiction that for the said purpose, coparcenary property would be deemed to have been partitioned.
The preponderant judicial opinion as adumbrated in the authorities dilated upon hereinabove does not detract, in our opinion, from these deductions. In all the reported cases, the contextual facts disclose partition of the joint family property of the coparcenary involved, to permit a conclusion that on the death of a predecessor in interest, his share in the property would devolve on his son in his individual capacity or not as a `Karta' of his undivided family so as to be available to the other members of the coparcenary thereof. The facts involved in the cases, referred to by the parties, did not present a factual setting in which the joint family property of a Hindu undivided family with a coparcenary had not been partitioned. A clear line of distinction thus separates the two situations as well as the consequences legislatively intended with the enactment of the Act. The scheme of the enactment, thus, not only approves of devolution of interest in the coparcenary property in a joint Hindu family governed by the Mitakshara Law but mandates as well the same subject to contingencies statutorily enjoined. The general rule of succession to the property of a male dying intestate and for that matter of a Hindu female as well, as obligated by Sections 8 and 15 of the Act, would have to be construed alongside the edict of devolution of interest in the coparcenary property of a joint Hindu family governed by Mitakshara Law to decide in a given conspectus of facts the manner of succession to the property statutorily enjoined. Any other enunciation providing unreserved primacy to Section 8 atleast before the enactment of Hindu Succession (Amendment) Act, 2005, would render Section 6 otiose a consequence not contemplated by the legislature. It is in this perspective that the tenability of the challenge to the maintainability of a suit on this count would, in our opinion, be decisively contingent on the state of the subject matter of the suit at the time of institution thereof as well as the status of the family of the parties. Axiomatically, if before the suit filed in the year 1979, there had been a partition of the joint family property i.e. the suit property and the joint family status had ceased to exist, the demur of the appellant-defendants in this regard is likely to be of formidable bearing. If, however, the joint family property as well as the joint family status had remained intact, the impeachment of the maintainability of the suit based on the Act would be inconsequential.
To reiterate in bare minimum, the predecessor in interest of the present respondents viz; Prakash Chand and Ashok Kumar, sons of Hari Narain had instituted the instant suit against their grand father Ram Sahai (defendant No.1), Hari Narain (their father/defendant No.2), Lallu s/o Ram Sahai (defendant No.3), Nand Kishore son of Ram Sahai (defendant No.4) and Brijesh Kumar son of Hari Narain (defendant No.5). These plaintiffs, thus, had filed the suit for partition of the properties stating the same to be joint family property seeking their shares. The suit admittedly had been filed by them against their grand father, father and brothers. In view of the factual narration contained in the impugned judgment and order and adverted to hereinabove, it is inessential to traverse in details the pleadings of the parties. Suffice it to state that whereas the plaintiffs pleaded that the properties delineated in paragraphs 3,4 & 5 of the plaint were of the joint family and purchased from the joint family funds, the defendants No.1, 3 and 4 asserted that except a basement mentioned in para 3(??) acquired by their common ancestor Mahadev, none of the other properties did belong to the joint family and instead, had been acquired by Ram Sahai out of his own funds. These defendants also referred to a suit filed in the year 1946 by Hari Narain, father of the plaintiffs against amongst others, Ram Sahai seeking partition of the properties set out in his plaint and his share therein. According to them, pursuant thereto, the father of the plaintiffs obtained his share in the property and, thus, since then the jointness of the properties ceased to exist. That the properties in both the suits are common and identical, however, is not disputed.
Hari Narain, defendant No.2 in the instant suit in his written statement, however, admitted that Ram Sahai, his father was taken in adoption by the common ancestor Mahadev, who had a flourishing business which he eventually entrusted to Ram Sahai. The business was conducted in the name of Mahadev Ram Sahai and that at that point of time, Mahadev, Ram Sahai and Hari Narain constituted a joint family with the integrant coparcenary and that the shop with his business and the properties purchased from the income thereof belonged to the joint family. That from the joint family funds, other properties too, had been acquired and that the same remained as such, was pleaded by him. Though he admitted of having instituted a suit against his father Ram Sahai seeking partition of the joint family property and his share therein, he stated in categorical terms that at the intervention of Gopi Vallabh Natani and Vijay Lal Katta, he did not pursue his claim. That from the joint family funds, amongst others, a shop was purchased in the name of Smt.Jadhav wife of Damodar (biological son of Mahadev, who died in 1909), was stated as well. The defendant No.2, thus, in emphatic terms did affirm that the properties set out in the paragraphs 3, 4 and 5 of the plaint in the instant suit did belong to the joint family of the properties and that those had continued to be so.
A brief overview of the evidence on record, at the cost of repetition though, needs to be undertaken to dispel the grievance of non-consideration thereof by the learned Single Judge, though in exercising the instant jurisdiction to decide the special appeal, such a course is not obligatory. A final judicial resolution of the lingering confrontation is, thus, the motivating determinant.
P.W.1 Prakash Chand, father of Hari Narain, while reiterating that the properties described in paragraphs 3, 4 and 5 of the plaint, had been purchased from the funds, generated by the joint family business, affirmed on oath that the same had not been partitioned. In cross examination, he expressed his ignorance about the institution of a suit by his father Hari Narain seeking his share therein. He, however, admitted the signature of Hari Narain on the plaint, Ex.A.1. He admitted as well that he was not in possession of the suit property. He confirmed that the business was of iron scrap. He also could not state what had been the contribution of Ram Sahai in augmenting the joint family property.
P.W.2 Narain Lal, who was not related to the parties, stated on oath that Mahadev had in his life time built a four storeyed house. This witness deposed further that he (Mahadev) had a flourishing business of utensils in the name & style of M/s Mahadev Ram Sahai and that on his death, Ram Sahai, Hari Narain and others carried on the said business. Though the witness asserted the properties in the suit to be of the joint family of the parties having been purchased from the joint family funds, he could not provide the details thereof.
D.W.1 Ram Sahai in his testimony, however, claimed that the suit property had been acquired by him out of his independent income. He stated that Hari Narain earlier had filed a suit seeking partition of the said properties following which there was amicable settlement, which he proved to be Ex.A.6. He also proved the order in the suit Ex.A.2. He stated that in terms of the compromise, he did pay an amount of Rs.10,000/- to Hari Narain, as is evidenced by the receipt Ex.A.7, written and signed by Hari Narain. He deposed that the plaintiffs had no possession of the suit property and that in fact, they were born 5/7 years after the institution of the suit by Hari Narain. In cross examination, this witness admitted that the award of the arbitrators had not been submitted in the suit and that Ex.A.7 as well, had not been filed in the court earlier. He stated that Ex.A.7 was written in the house of Gopi Vallabh, on which he (Gopi Vallabh) as well as Vijaylal, who were the arbitrators, had put their signatures. The witness stated that he made payment of Rs.10,000/- from his house funds and not from his business. He admitted that during the life time of Mahadev, the business of utensils used to be carried on in the name of Mahadev Ram Sahai and that on his (Mahadev) demise, the business continued in the same name. The witness, when confronted with Ex.A.7, could not read the document expressing his poor eyesight. He, however, denied the suggestion that this document was forged.
D.W.2 Chhutanlal deposed that Ex.A.7 was in the writing of Hari Narain on which he (Hari Narain) also put his signatures. In cross examination, this witness conceded that neither he was in possession of the document, written by Hari Narain nor did he (Hari Narain) write any letter in his presence. He, however, stated that Ram Sahai with reference to Ex.A.7, disclosed to him that there had been an amicable settlement with Hari Narain. In cross examination, this witness confirmed the existence of business of Mahadev at Tripolia Bazar. Apart from admitting that the said business had been continuing and that in the same, Mahadev, Ram Sahai and his sons were also involved, the witness stated that he did not know Mst.Jadhav.
D.W.3 Kalyan deposed that he knew Hari Narain and Ram Sahai and referred to a partition between them following which Ram Sahai paid an amount of Rs.10,000/- in cash to Hari Narain and that on receipt thereof, he (Hari Narain) executed Ex.A.7 in his presence. He stated that Hari Narain did write the document and put his signature on Ex.A.7 in presence of Maganlal and Devki Narain as witnesses. The witness in his cross examination admitted that this document was written in the house of Gopi Vallabh in the presence of Hari Narain, Ram Sahai, Maganlal and Devki Narain. He, however, admitted in cross examination that Ex.A.7 was not written in his presence. He admitted as well that he had not signed the document as a witness. In cross examination, he further stated that neither Gopi Vallabh nor Vijaylal was present, when Ex.A.7 was written. He could not state as to why Maganlal and Devki Narain were then present.
Hari Narain, who examined himself as D.W.2/D-2, testified that the joint family business during the life time of his grand father Mahadev was being conducted in the name and style of M/s Mahadev Ram Sahai, which continued even after his (Mahadev) death. He stated that the properties in the suit had been purchased from the joint family funds generated by the joint family business. He admitted to have instituted a suit for partition of the suit properties but added that the arbitrators Gopi Vallabh and Vijay Lal did not arrive at any settlement and that no decision was rendered by them. The witness clarified that instead, on the advise of the arbitrators, he did not pursue his claim. He denied to have been paid a sum of Rs.10,000/- by Ram Sahai and also stated that Ex.A.7 was neither written by him nor did it contain his signatures thereon. In cross examination, this witness categorically denied that the property or any portion thereof had been purchased by the individual income of Ram Sahai.
The plaint in the earlier suit admittedly filed by Hari Narain seeking his share in the joint family property identical to the subject matter in the subsequent suit (Ex.A.1) contained the averment of the plaintiff that the parties were members of the joint Hindu undivided family and that the business of the said family was being run in the name & style of M/s Mahadev Ram Sahai. He stated that though he had been conducting his separate business since 18.11.1947, he had a share in the joint family property. He claimed 1/4th share in the said property and sought a decree to that effect. As the plaint discloses the suit was filed against Ram Sahai, Lallu (present defendant No.3) and Smt.Bhori Devi wife of Ram Sahai. Admittedly then the present plaintiffs had not been born. This suit, which was instituted in the court of learned District Judge, Jaipur City, was transferred to the court of learned Civil Judge, Jaipur City, which by order dated 9.4.1947 permitted the dispute to be settled by arbitration and fixed 28.4.1947 for award. On 28.4.1947, the learned court recorded that the valuation of the suit was above Rs.5,000/-, which was beyond its jurisdiction. The next date of the suit, this notwithstanding, was fixed on 14.7.1947 for filing of the award. On 31.5.1947, however, the learned court ordered as hereunder:
This file has been presented by Gobind Prasad, Reader, who has stated that the case has been settled and that the suit be dismissed. Mr.Gopal Lal, learned counsel for the plaintiff is present and he also states that the case has been settled. Hari Narain, plaintiff, is also present and states that the case has been settled and the suit be dismissed.
The case is dismissed.
It is relevant to mention that the above text is the translated version of order in original rendered in vernacular (Urdu).
Prior thereto i.e. 9.4.1947, a joint application was submitted by the parties before the learned court seeking reference of the dispute to Vijaylal and Gopi Vallabh, Advocate, undertaking that whatever award would be passed by them, would be binding. It was prayed that the case be handed over to the arbitrators and the period be fixed for the award. This application had been proved and exhibited as Ex.A.6. The application Ex.A.2 dated 14.7.1947 signed by Hari Narain had also been brought on record, wherein it is stated that the arbitrators had given their award and that the plaintiff had no relationship with the defendants and that the application was being filed with the prayer that the suit be dismissed as withdrawn. Incidentally, as alluded herinabove, the suit was dismissed on 31.5.1947. Ex.A.7, Hindi version of the original in local dialect of Jaipur City, the sheet anchor of the case contesting defendants, the execution whereof has been emphatically denied by Hari Narain, deserves to be extracted as hereunder:
????? ?- ???? ??????27-4-47 ?? ???? ????? ??
????? ???? ?????? ?????? ?? ?? ??? ?????? ?? ??? ????? ????? ??? ????? ???? ??? ????? ?????? ?? ???? ?? ??? ??? ???? ?? ???? ????? ?? ??? ??? ??? ????? ???? ?? ???? ????????? ?? ??? ?????? ???? ????? ?? ?????? ???? ? ?????? ??? ?? ????? ???? ??? ? ????? ????????? ????? ???? ?? ????? ?? ???? ?? ?? ??????? ????? 9999/- ????? ?? ?????? ???? ???? ????? ????? ?? ????? ??? ????? ?? ???? ???????? ?? ???? ??? ??? ?????? ?????? ???? ?????? ??? ???? ?? ???? ???? ?? ??? ???? ????? ???? ???? ? ???? ???? ???? ???? ????? ?? ??? ???? ???? ??? ??? ???? ?? ???? ???? ?? ???? ??? ????? 9999/- ????? ???? ????? ????? ?? ???? ??? ???? ?? ??? ??? ???????? ?? ????? ??? ??? ???? ????? ??? ??? ??????? ?????27-4-47 ????-
? ?? ??? ?????? ????? ?????? ??. ??? ?? ??
?? ???? ???? ??? ???? ? ?? ???? ????? ?????? ??? ??? ?????? ?? ??? ?? ????? ?? ??? ????????? ?? ?? ? ?? ?? ?????? ??? ?? ??? ?????? ?? Hari Narain
As the above quote would prima facie reveal, the document had been executed by Hari Narain acknowledging thereby that in terms of the award of the arbitrators viz; Vijay Lal Katta and Gopi Vallabh Natani, an amount of Rs.9,999/- had been received by him and that therefore, neither he nor his sons would have any further claim in the movable and immovable properties of the joint family. This document is dated 27.4.1947 i.e. prior to 31.5.1947, when the suit was dismissed. Intriguingly however, neither the defendants No.1, 3 and 4 did refer to this document in their written statement nor were the plaintiffs' witnesses confronted therewith. This document was introduced for the first time by D.W.1 Ram Sahai in course of his examination in chief in the instant suit. Significantly too, none of the witnesses named in the document, was examined. To reiterate, Hari Narain denied to have either written this document or to have signed it.
A plain perusal of the above exhibits in original, as available on records, reveals that whereas in Ex.A.1 and Ex.A.2, there is an endorsement -
????? ??
Sd/-
Hari Narain 5.2.87 Ex.A.7 on its back side contains the following endorsement:
?? ????? ??
?? ?????????
Hari Narain It is important to note as well at the stage that Hari Narain had signed his deposition sheet in the suit as D.W.2/D-2 as ?????????. It is, thus, contended on behalf of the respondents herein that the Ex.A.7 is a document neither in the hand of Hari Narain nor signed by him, his signatures thereon being as ?????????.
The findings recorded in the impugned judgment and order, when tested on the touchstone of the overall evidence on record, thus cannot, in our considered opinion, be faulted with as absurd or implausible by any means against the weight of the materials on record. The disclosures from the evidence on record qua the earlier suit, attest that not only the court of the learned Civil Judge, Jaipur had no pecuniary jurisdiction to try the same, there has been no decree evidencing either the terms and conditions of the amicable settlement or for partition of the joint family property and/or specifying the share of Hari Narain in it. Neither any award of the arbitrators has been brought on record nor Ex.A.7 did form a part thereof. To reiterate, this document i.e. Ex.A.7 had not been either referred to in the written statement of the defendants nor were the plaintiffs' witnesses confronted therewith in course of their testimony in court. This assumes significance in view of the difference in the inscription of the words Hari Narain, in Hindi as ????????? made by the defendant No.2 in his own hand while signing the deposition sheet and ????????? appearing on Ex.A.7. The remark ?? ????? ?? made by Hari Narain also cannot be lightly disregarded. The evidence with regard to execution of this document is also not wholly convincing. The testimony of the witnesses of the defendants in this regard does not inspire confidence.
As the order dated 31.5.1947 of the learned Civil Judge, Jaipur City would reveal, this suit was dismissed, it having been informed that the differences have been settled. No compromise decree was, however, passed incorporating the terms of the settlement. The factum of institution of the earlier suit filed by the defendant No.2 i.e. Hari Narain, when analysed in the above overwhelming backdrop, in our view, does not per se unmistakably authenticate that thereby a partition of the joint family property then existing, had taken place and he (D.W.2) had received his due share in it. The incidence of dismissal of the suit ipso facto by the learned Civil Judge, Jaipur City, on being informed that the matter has been settled, in our comprehension, does not lead to this conclusion in the face of the evidence on record.
That institution of a suit for partition, though expressive of an intention eventuating severance from the joint family, yet the character of the joint family properties does not undergo a change in absence of partition by metes and bounds, is a profound and well recorded legal proposition tested by time.
As has been reiterated, amongst others, in M.L.Subbaraya Setty (supra), having regard to the regnant evidence on record, in our comprehension, the institution of the earlier suit by itself does not lead to an irrefutable conclusion that the partition of the joint family property had been effected thereby. On the other hand, the testimony of the witnesses is to the effect that the joint family business of utensils of the common ancestor Mahadev was continued in the name of M/s Mahadev Ram Sahai even after his death. No mention of any other business of the joint family has surfaced. Evidence also exists to the effect that the suit property had been purchased from the income of the joint family, though a few items thereof had been purchased in the name of Smt.Jadhav. There is no persuasive evidence to hold that the same or any addition to the joint family property made by Ram Sahai, had been from his own income. The defendants, in our opinion, have failed to discharge their burden in law to prove this aspect of the lis. As it is, judged by the principle of preponderance of probability on weighing the evidence on record with the rival pleadings, the suit property common in both the proceedings, in our estimate, did belong to joint family property at all relevant times and, thus, it was the burden of the defendants to prove to the contrary.
As has been held by the Hon'ble Apex Court in Mallesappa Bandeppa Desai vs. Desai Mallappa alias Mallesappa (supra), where a Manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the produced money was from his separate funds. Their lordships were of the view that the onus of proof in such a case, must be placed on the Manager and not on his coparceners.
The eventuality of blending of self acquired property of a female Hindu with the joint family property would presuppose absence of any doubt or dissension that the same had been acquired by her self generated funds or income. In absence of any evidence to that effect in the instant case, further dilation in this regard in our view is inessential. That as no absolute property of any female member of the joint Hindu family of the parties, has been proved to exist, this aspect does not deserve to be addressed further.
Qua the cavil founded on the bar of limitation, suffice it to record that in the face of continuance of the jointness of the property, the possession thereof by any co-sharer even to the exclusion of others, cannot be construed to be adverse, so long as the property is not partitioned. That no defence of adverse possession by the co-sharer in possession can be assumed in such an eventuality, has been held by the Apex Court in Janaki Pandyani (supra).
It having been determined that the joint family property had not undergone partition with the institution of the earlier suit, the subsequent suit filed by the sons of Hari Narain, who have born after 1946-47 cannot, thus, be held to be barred by time. The conclusion recorded by the learned Single Judge that even assuming that the plaintiffs were excluded from the joint family property, the plaintiff No.2 Ashok Kumar having attained majority in the year 1978 and, thus, the subsequent suit filed in the year 1979 was within the period of limitation prescribed by Section 110 of the Limitation Act, 1963, also cannot be lightly brushed aside. Further, the plaintiffs in their plaint have averred that the respondents inspite of repeated requests, were not prepared to cause partition of the joint family property and eventually on 31.7.1979 refused to do so. The plea of bar of limitation, thus, on a cumulative consideration of the above aspects also cannot be sustained.
Vis a vis the plea of bar under Order 23 Rule 1 CPC on the assertion that the earlier suit had been withdrawn without obtaining any leave to institute a fresh suit, apt it would be to recall the testimony of D.W.2 Hari Narain, the plaintiff in the first suit that on being advised by the arbitrators, he did not pursue his claim. To reiterate, by order dated 31.5.1947, the suit was dismissed acting on the submission that differences between the parties have been settled. Nothing further is forthcoming in this regard. Not only the learned Civil Judge, Jaipur City did not have the jurisdiction to try the suit and, thus, in law, any order passed by it, is construed to be non est, but also the subsequent suit was not filed Hari Narain. With the continuance of the jointness of the family and its property even thereafter, we are also of the opinion that the bar of Order 23 is not attracted. The Apex Court in Kiran Singh (supra) has held that a decree passed by a court without jurisdiction is a nullity and, thus, its invalidity can be set up on a plea, whenever and wherever sought to be enforced or relied upon even at the stage of execution as well as in collateral proceedings. Their lordships propounded that the defect of jurisdiction of a court, pecuniary or territorial or whether it is in respect of subject matter of the action, strikes at its very authority and such a defect cannot be cured even by consent of the parties.
As it is, their lordships in Ratnam Chettiar (supra) did proclaim on the aspect of reopening of partition of the property of Hindu undivided family that whenever the same is effected and it is proved to be unjust and unfair and is detrimental to the interests of the minors or poor members of that family, it (partition) can certainly be reopened. That whatever be the time lag in between, in such an eventuality, it is the duty of the court to protect and safeguard the interest of the minors, has been underlined.
In the wake of the above narrative and the findings arrived at, we are of the firm opinion that the challenge to the maintainability of the suit based on Hindu Succession Act, 1956 is not sustainable. Further, we find ourselves in complete agreement with the determination made by the learned Single Judge on all essential aspects, factual and legal.
Resultantly, the impugned judgment and order, therefore, does not merit interference in the instant appeal, which fails and is hereby dismissed.
(VEERENDR SINGH SIRADHANA),J. (AMITAVA ROY),C.J. RANKAWAT JK, PS
All the corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Shashi Kant Gaur