Delhi High Court
Rajinder Kumar vs R.K. Bajaj And Ors. on 27 July, 1992
Equivalent citations: 1992RLR446
JUDGMENT C.L. Chaudhry, J.
(1) The plaintiff has filed this suit seeking a decree of declaration that the judgment and decree dated 9.11.1989 passed in S. No. 2713/89 by this Court was obtained by collusion, fraud and is illegal and void and does not confer or create any right, title or interest in favor of defendants 1, 2 & 4 in property bearing No. A-167. defense Colony.
(2) The allegations made in the plaint are that the plaintiff is a tenant on the ground floor of House No. A-167, defense Colony .y since 1969, on monthly rent of Rs. 250.00. Bhagwan Dass was the original owner of the house and he sold it to Dev Raj Bajaj, detent. No. 3, vide sale deed d..ted 10.9.1969. The plaintiff attorney in favor of deft. 3 at the instance of the previous owner, and deft. 3, thereafter, started receiving monthly rent from the plaintiff. Deft. 3, immediately after the purchase of the premises in question, with ulterior motive and design and to coerce the plaintiff to quit from the premises filed an eviction petition in 1970 u/S 14 & (g) of the Delhi Rent Control Act. In the petition, deft. 3 admitted that he was the purchaser of this property, by a registered sale deed. In 971, deft. 3 filed another eviction petition u/S 14 of Delhi Rent Control Act, which was dismissed. The matter did not rest there, and deft. also instituted an eviction petition u/S 14 of the Delhi Rent Control Act. In that petition also, he described himself as the owner of the property. The petition was dismissed. 2 b. The appeal filed by deft. 3 was also dismissed and the second appeal is pending in this court. It is further stated that another false petition was filed by deft. No. 3 seeking eviction of the plaintiff. In sum and subtance, the plea is that deft. No. 3 is making all possible efforts to evict the plaintiff from the premises in question, but he did not succeed. Deft. 3 designed a new plot/scheme to create a fresh ground/cause of action for filing eviction petition u/S 14C of Delhi Rent Control Act. For creating such a cause of action a fraudulent and collusive suit was filed by deft. 1 against the other defendants seeking partition of the property No. A-167, defense Colony. It may be stated that deft. 1 & 2 are the sons of deft 3 and deft. 4 is the wife of deft. 3.
(3) In the partition suit, it was alleged that the property No. A-167, defense Colony was Huf of Dev Raj Bajaj, deft. No. 3, and the other parties. The property has also been assessed as the property of HUF. Deft. 1 claimed share in the property. The suit was compromised and on the basis of that, a partition decree was passed by virtue of which, Dev Raj Bajaj (deft. 3) and Smt. Rajinder Kumar Bajaj (deft. 4) became exclusive owners of the ground floor of the said property. Rajiv Bajaj (deft. 1) became the exclusive owner of the first floor of the property and Arun Bajaj (deft. 2) became the exclusive owner of the second floor of the said house. In these premises, the partition decree is challenged on the grounds that the suit was filed solely with a view to create a ground for bonafide requirement ana a new cause of action in favor of deft. 3 as against the plaintiff to institute a fresh eviction petition. The suit was not maintainable in law by virtue of bar contained in Section 281 of the Income Tax Act; the suit was not maintainable as a son could not claim a partition of the property during the life time of his father, who admittedly was the karta of the HUF. The house No. A-167, defense Colony, was never purchased from the funds of the Huf nor was the property of the Hup which is clear from the conduct and representations of deft. 3 stated in various eviction petitions, and legal proceedings initiated by the deft. 3 against the plaintiff since 1969, ever since the date of purchase of the property by him from the erstwhile owner. The judgment and decree in the partition suit was obtained by playing fraud on the Court. During the life time of Karta, the suit could not be filed for partition in law and the decree passed in the suit is nullity and non est. In these premises, aforesaid declaration is sought.
(4) Along with this suit, an application, which is under disposal being I.A. No. 1466/ 1991 has been filed with the prayer that the proceedings pending in the Court of Smt. Mamta Sehgal, Rent Controller in the eviction case, be stayed. The allegations made in this application is simply a repetition of the allegations made in the plaint. In the application it is further stated that the balance of convenience lies in favor of the plaintiff and against the defendants, and the proceedings pending before the Rent Controller are liable to be stayed. Plaintiff has been advised that the tenant can not challenge the partition decree in the proceedings before the Rent Controller, therefore the necessity of filing the present suit has arisen.
(5) The suit is resisted on behalf of the defendants. In the W/S filed on behalf of defts. 1 & 2, the defense set up is that the defts. 1 & 2 constituted a Huf of which, defts. 3 is the Karta. House No. A-167, defense Colony has been partitioned between the defts by virtue of judgment and decree dated 9.11.1989 passed by this court wherein, the individual rights of the defendants have been determined in respect of this Huf properly and the property has been finally partitioned. The plaintiff in his capacity as a tenant on the ground floor of the above said house has no locus standee whatsoever to challenge the judgment and decree dated 9.11.1989, which decree has become final between the defts. The suit filed by the plaintiff is totally malafide and filed only with a view to delay and obstruct the proceedings initiated by deft. 3 against the plaintiff. Defendant 3 has retired as Assistant Director General, P&T Board, Ministry of Communication, Government of India, and in his capacity as a retired Govt. servant, has got a right to invoke Section 14C of the Act, seeking eviction of the plaintiff from the ground floor of the house, of which the plaintiff is the tenant. There has been no collusion between defts 1 & 2 in getting the property partitioned between themselves. The Huf is assessed to income tax having its permanent account No. 22-009-HZ-085 from 25.5.1972. This house was acquired in 1969 out of the funds of the joint family of the defts. The deft. 3 is the sole surviving heir of his father late Shri K S. Bajaj, and the paternal grandfather of defts. 1 & 2. Unfortunately, all other heirs of late Shri K.S. Bajaj were killed in the riots during the partition of the country in 1947. The movable and immovable assets of late Shri K S. Bajaj were inherited by deft. 3 who has thereafter been managing all those assets. The house was acquired in 1969 out of those funds indeed in the name of deft. 3 only being the eldest male member, for defts 1 & 2 were very young at that time and all the properties were being managed by deft. 3 alone. Deft. 3 as also other defts were aware of the fact that the house was in fact the property of the HUF. The latest rent of the property/ premises is stated to be Rs. 410.00. It has not been denied that deft. 3 filed petitions for eviction against the plaintiff. However, it is stated that the plaintiff committed violation of provisions of Rent Control Act, and that is why, the petitions were filed against him. The defts exercised legitimate rights available to them under the statute. It is not open to the plaintiff to allege fraud or collusion against the defts. in respect of partition of the property which, the defendants owned and got it partitioned willingly for genuine needs. It was agreed for the convenience of the defts 3 & 4 who are aged 67 and 62 years respectively and sick, to give them ground floor so that in the evening of their lives, they could live comfortably. It is denied that the decree passed by this Court in a partition suit is collusive or void. It is denied that S. 281 of the Income Tax Act, in any manner affected the suit filed by deft. 1 against other defts. The house in question was acquired out of the funds of ancestral property and the house has been a Hup property. Therefore, the defts who are members of Huf, during the life time of their father, can seek partition of the property. [In para 6, W/S of defts 3 & 4 which is similar to that of defts 1 & 2 is noticed].
(6) In replication plaintiff has reiterated allegations made in plaint.
(7) I have heard the learned counsel for the parties. On behalf of the plaintiff, Mr. Lekhi contended that the suit is maintainable on behalf of the plaintiff. The plaintiff has an interest in the property and the tenancy is a civil right He can enforce this right by means of a suit. Plaintiff can challenge the decree of partition, so far as it affects his rights. It was contended that the decree was void 'and was obtained by fraud and collusion and was not binding on the plaintiff. In support of his contentions, he relied upon Surjit Singh vs. Mohinder Pal Singh, wherein it was held : "THERE can be no scope for doubt that a third party, whose civil rights are affected by a marriage which is null and valid under Section 11 of the Act can bring it into question in a Civil Court which undoubtedly has the jurisdiction to adjudicate upon the same and give its verdict."
(8) It was' next contended that a son can not claim partition of a Huf property during the life time of his father. In support of this contention, he relied upon Punjab National Bank Ltd. vs. Jagdish Sahai (AIR 1936 Lahore, 390) wherein it was observed that in Punjab, during the life time of the father, his son can not enforce partition in joint family property. In the other case of Nihal Chand Gopal Dass vs. Mohan Lal, Air 1972 Lahore 211 similar view was taken. It was next contended that the decree of partition was obtained by deft. 1 by tactics and playing fraud on the Court. He had drawn my attention to the various partitions filed by deft. 3 for eviction of the plaintiff where in Column 3(a) meant for name and address of landlord, name of deft. 3 is given and no plea of joint property, had been taken in those eviction petitions. In sum and substance, the contention is that the decree obtained by deft. 1 against defts 2 to 4, is illegal, void and ineffective and can not be enforced against the plaintiff.
(9) On behalf of the defendants, it was contended that the plaintiff had no right to challenge the partition decree. Even otherwise, it was a Huf property and deft. 1 could enforce the partition. There is no bar in Delhi to enforce partition of a property by a son during the life time of his father. On merits, it was contended that deft. 3 constituted a Huf Along with his sons and the property in question was joint property. In support of their contentions, they have relied upon Nanak Chand vs. Chander Kishore . In this case it was held by this Court that a son can ask for partition from father during his life time.
(10) Reliance is also placed upon Puttangamma vs. M.S. Ranganna; wherein it was observed : "A member of a Joint Hindu Family subject to a Mitakshara law can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is also immaterial in such a case whether the other coparceners give their assent to the separation or not "
The other judgment relied upon is Purnendu Bikash Maity vs. Chairman, wherein it was held : "A person who belongs to a Mitakshara Joint Hindu Family is free to use his holding in any manner he likes, subject to any lawful objection on the part of his coparceners. An outsider cannot complain with regard to the user of the holding by one member of the family in a particular way if it is otherwise lawful."
Reliance was also placed on Smt. Swarna Lata Devi vs. M/s. Krishna Iron Foundry, . In this case, a lessee of some of the co-sharers filed a suit for setting aside the partition decree and for other reliefs mainly on the ground of fraud and non-joinder of necessary parties. The court held that the plaintiff was only a lessee from other co- sharers. He had therefore, a subordinate and not co-ordinate interest in respect of the disputed properties in relation to the appellant. The lessee must be bound by the acts of its lessee/the co-sharers and necessarily by the partition decree that was passed against him. The lessee had no right under those co-sharers to turn round to challenge that decree of the partition on the ground of fraud. [In para 12, Orders of I. Tax Authorities are noticed].
(11) I have given my thoughtful consideration to the contentions raised by the counsel for the parties. In my opinion the suit is maintainable to challenge the decree on the ground that it was obtained by fraud. S. 44 of the Evidence Act lays down that any party to a suit or other proceedings may show that any judgment, order or decree which is relevant u/S. 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. S. 44 itself gives the right to a party against whom a decree is sought to be produced as an evidence to claim a right on the basis of the decree, to challenge the decree in those proceedings. He has a right to show that a decree was delivered by a court not competent to deliver it or was obtained by Oriental Bank of Commerce vs. M.K. Gupta & Co. fraud or collusion. If the party has a right to challenge the decree in the proceedings against him, there can be no bar to challenge the decree by way of an independent suit. This court in Sushila Devi vs. A.C. Jain; 1988 (1) Rcr 264 has held that if one of the owners files an application for ejectment of a tenant on the ground that the property was partitioned between the joint owners and by virtue of the partition he became the owner of the property; and the tenant raises a plea that the decree of partition was obtained by collusion, the Controller can go into the question of collusiveness of the partition decree between the members of the HUF. In my opinion if the tenant can challenge the decree in the eviction proceedings, certainly he has a right to challenge the decree by way of a separate suit on the grounds that it was delivered hy a Court not competent to deliver it or was obtained by fraud and collusion, certainly he has a right to challenge the decree by way of a separate suit on these grounds.
(12) The contention of Mr. Lekhi that the son cannot claim partition during the life time of his father has no force in view of the decision of this court in the case of Nanak Chand vs. Chander Kishore wherein a DB. of this court held that in Delhi a son can ask for partition of the Huf property from the father during his life time. Regarding collusiveness, prima facie, 1 do not see much force in this contention. In the assessment order for the assessment year 1974-75, the name of the assessed is shown to be Shri Dev Raj Bajaj and Sons, A-197, defense Colony and the status is shown as 'HUP" and the House property is shown as A-167, defense Colony. In the subsequent years also the assessment is shown to be in the name of Dev Raj Bajaj and sons which shows that Dev Raj Bajaj and Sons is a HUF. The contention of Mr. Lekhi that in the eviction petition as filed by deft. 3 it was stated by him that he had purchased house property No. A-167, defense Colony, would clearly indicate that the house was the personal property of deft. 3. I am not inclined to accept this contention. There is material on the record such as the assessment order which leads to the inference that there is a Huf in the name and style of M/s. Dev Raj Bajaj & Sons and the house property, A-167, defense Colony was shown to be the Huf property. Prima facie the defts. have been able to establish that they constituted a HUF. under the name and style of Dev Raj Bajaj and Sons and property bearing No. A-167, defense Colony was a HUF. Property. One of the sons has filed a suit for partition of the property. Nothing has been brought on record that prima facie the partition decree obtained from this court was a result of a fraud or collusion. A member of a Huf can claim partition if he does not want to remain joint with other members. I do not find any prima facie case in favor of the plaintiff. Balance of convenience also is not in favor of the plaintiff as the deft. 3 is enforcing his legal right against the plaintiff. Application dismissed