Delhi District Court
Sh. Manmohan Raj Bindra vs Sh. Balraj Bindra (Since Deceased) on 16 December, 2019
DLCT010000252006
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT
JUDGE12, TIS HAZARI COURTS, DELHI
CS No. 10311/16
1. Sh. Manmohan Raj Bindra,
S/o Late Sh. Prithvi Raj Bindra,
R/o 5, Original Road,
Karol Bagh, New Delhi.
2. Smt. Raj Mohini Bindra (Since deceased)
Widow of Late Sh. Prithvi Raj Bindra,
R/o 5, Original Road,
Karol Bagh, New Delhi. .... Plaintiffs.
Versus
1. Sh. Balraj Bindra (Since deceased)
Through legal representatives.
1 (a) Sh. Deepak Raj Bindra,
S/o Late Sh. Balraj Bindra.
1 (b) Smt. Sneh Lata Bindra,
Widow of Late Sh. Balraj Bindra.
1 (c) Smt. Ritu Rai Chauhan,
W/o Sh. Raman Rai Chauhan.
Suit No. 10311/16 Page No. 1 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
1 (d) Smt. Meena Kapur,
W/o Sh. Virender Kapur,
All R/o 173, Model Town, Jullunder.
1 (e) Smt. Neeta Chauhan,
W/o Sh. Amolak Chauhan,
R/o 7401, Vasant Kunj,
New Delhi.
2. Sh. Krishan Mohan Bindra,
R/o 2, Dordrecht Road,
Acton, London.W3,
(England).
3. Smt. Asha Chowdhry,
W/o Sh. Devendra Kumar Chowdhry,
R/o 2, Auckland Place (Top Floor),
Calcutta - 700017.
4. Smt. Indu Gondal,
W/o Sh. Prashant Kumar Gondal,
R/o J24, Jangpura Extn.,
New Delhi.
5. Ms. Sunita,
D/o Late Sh. Prithvi Raj Bindra,
R/o 5, Original Road,
Karol Bagh, New Delhi. .... Defendants.
Date of institution : 30.04.1979
Date of reserving Judgment : 22.10.2019
Date of decision : 16.12.2019
SUIT FOR PARTITION
Suit No. 10311/16 Page No. 2 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
JUDGMENT
1. Initially present suit was filed before the Hon'ble High Court but later on same was transferred to District Court on enhancement of pecuniary jurisdiction of District Courts.
2. Brief facts as stated in the plaint are that the parties were originally resident of Sialkot, Pakistan and migrated to India in 1947. Pedigree table is as under : Mulk Raj Bindra Prithvi Raj Bindra Balraj Bindra Krishan Mohan Bindra (Deceased) Raj Mohini Bindra (Wife) Manmohan Raj Asha Indu Suneela Bindra It is further averred that In West Pakistan, there was Joint Hindu Family of which Sh. Mulk Raj Bindra was the Karta and after Suit No. 10311/16 Page No. 3 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. migrating to India, claims for the properties left in Pakistan were filed which were duly verified and sanctioned. The joint family owned agricultural land in Pakistan and therefore, land was allotted in District Jullundur, Punjab. Sh. Mulk Raj Bindra died on 1.12.1954 and after his death, Sh. Prithvi Raj Bindra became the Karta of the family. The joint family purchased, at Government auction, property No. 5, Original Road, Karol Bagh, New Delhi consideration of which was paid in the form of various claims of properties left by HUF in Pakistan. Further, out of the fund of Joint Family properties, property No. 173, Model Town, Jullundur City was purchased Late Sh. Mulk Raj Bindra. After death of Sh. Mulk Raj Bindra on 1.12.1954, Sh. Prithvi Raj Bindra i.e. the father of the plaintiff No. 1 became Karta of the HUF. He died on 26.3.1978 and after his death, the differences have been arisen between the parties and therefore, it became difficult to maintain and keep the property joint and the plaintiffs do not want to remain members of Joint Hindu Family property and therefore, they have filed the suit for partition.
3. Initially there were only two defendants. The defendant No. 1 contested the case by filing written statement in which he has taken the preliminary objection that Sh. Prithvi Raj Bindra, father of the plaintiff Suit No. 10311/16 Page No. 4 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. No. 1 has left behind three daughters namely Asha, Indu and Suneela who are the necessary parties.
On merit it is admitted that Sh. Mulk Raj Bindra, grandfather of plaintiff No. 1 was the Karta of Joint Hindu Family which consists of 3 sons and wife Smt. Draupadi Devi who died somewhere in 1975. Joint Family Properties are 5, Original Road, Karol Bagh, New Delhi; 173, Model Town Julundur City and agricultural land measuring 3 kanals 18 marlas situated in Basti Shah Kuli Tehsil and District Jullundur. Besides this, joint family owned following shares in Indian and Malaysia Companies : i New Sarndah Rubber 5525 ii Kundong Tanjong Pau 3426 iii Parit Perak Rubber 3000 iv Kemas Rubber 1230 Further, it is stated that after the death of Sh. Mulk Raj Bindra, the shares were transferred in favour of Sh. Prithvi Raj Bindra being Karta of the family and some of the shares were transferred in the name of defendant No. 1. Further, it is stated that there was a partial partition of the shares on 29.3.1972 amongst three brothers i.e. Prithvi Suit No. 10311/16 Page No. 5 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Raj Bindra and defendants in equal share but so far as the shares of Malaysian Companies mentioned above are concerned, they were kept in the name of Sh. Prithvi Raj Bindra for the sale of convenience and further it is stated that the plaintiffs knows that defendants are entitled to 1/3 shares of each of the shares of Malaysia and also are entitled to recover from the plaintiffs the sale proceeds of the share which have been sold by them and other benefits and plaintiffs have intentionally suppressed the said facts.
4. Defendant No. 2, in his written statement, has also repeated almost the same contents as stated by defendant No. 1 in his statement.
5. Defendant no. 3 to 5 were impleaded as defendants vide order dated 9.12.1980. Defendant Nos. 3 and 5 have filed their joint written statement in which it is stated that the suit is not maintainable because there is no HUF between the plaintiff and defendants and there has been already a partition in respect of the property by Sh. Mulk Raj Bindra and the parties have been in exclusive possession of their respective shares and the suit has been filed by the plaintiff in utter disregard of the settlement which was taken place between the late father of the plaintiff and defendants. Further, it is stated that a partial Suit No. 10311/16 Page No. 6 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. partition amongst the sons of Sh. Mulk Raj Bindra took place in respect of movable property vide memorandum dated 29.3.1972 and later on final partition took place in the year 1977. Property No. 5, Original Road has been in occupation of the plaintiff since about the year 1955 and the defendants have already been living in the suit property. As far as the property No. 173 is concerned, the same has been in occupation of defendant Nos. 1 and 2 since 1955. Defendant No. 2 left India sometime in 1978 and settled in U.K. and thereafter, the defendant No. 1 is alone in occupation of the said property. He has also in possession of the agricultural land which is in Jullundur and since the late father of the defendants was in possession of property No. 5 and defendant No. 1 was in possession of property of Jullundur and defendant No. 2 settled in U.K., it was agreed that the defendant No. 2 will have 1/3 share in Delhi property as well as 1/3 share in both properties whereas Sh. Prithvi Raj Bindra shall be the owner of 2/3 share of Delhi property and defendant No. 1 shall be owner of 2/3 share of both Jullundur properties. The said partition took place about in the end of year 1977. Hence, as per the said settlement, the suit is liable to be dismissed.
6. Replication to the written statement of defendant Nos. 3 and Suit No. 10311/16 Page No. 7 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. 5 filed by the plaintiff in which the plaintiff reiterated almost same contents as stated by him in the plaint and denied the contents of the written statement as incorrect.
7. Defendant No. 4, in her written statement has stated that the pedigree table set out in para 2 of the plaint is not complete. Sh. Mulk Raj Bindra left behind his wife, three sons and three daughters namely Kamla Chopra, Nirmal Kapoor and Uma Chaudhary. Sh. Krishan Mohan Bindra has not married. Sh. Balraj Bindra has a wife Smt. Sneh Lata Bindra, a son Sh. Deepak Raj Bindra and daughters Mrs. Meera Kapoor, Ms. Ritu and Ms. Neeta. Sh. Prithvi Raj Bindra survived by his widow, a son and three daughters including her. Further, it is stated that the property No. 5, Original Road was purchased in the joint name of Smt. Draupadi Devi, Sh.Prithvi Raj Bindra, Sh. Balraj Bindra and Sh. Krishan Mohan Bindra in equal shares and it was accordingly mutated. After demise of Smt. Draupadi Devi, her ¼ share stood inherited and succeeded to by three sons and three daughters of Smt. Draupadi Devi and now the property stands in the name of Sh. Prithvi Raj Bindra, Sh. Balraj Bindra and Sh. Krishan Mohan Bindra. The property is on lease hold plot and the lessor is the Delhi Development Authority. Further, it is Suit No. 10311/16 Page No. 8 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. stated that the property No. 173, Model Town, Jullundur City was self acquired property and was solely owned by Sh. Prithvi Raj Bindra, her deceased father. The property was never purchased as joint family property or was never a HUF property. Further, it is stated that the agricultural land in Jullundur has been kept looking after by defendant No. 1. Thus, it is prayed that the suit be dismissed.
8. Hon'ble High Court vide order dated 1.9.1997 passed a preliminary decree declaring that out of the property mentioned in annexure A to the plaint, 1/3 shall go to legal heirs of Sh. Prithvi Raj Bindra (since decease) i.e. plaintiff No. 1, plaintiff No. 2 and defendant Nos. 3, 4 and 5; 1/3 share will go to the legal heirs of Sh. Balraj Bindra i.e. defendant Nos. 1a to 1e and 1/3 share will devolve upon defendant No. 2 Krishan Mohan Bindra and the case was fixed for local commissioner report.
9. Present case was transferred to the District Court on the enhancement of pecuniary jurisdiction vide order dated 9.12.2002.
10. Thereafter, vide order dated 19.2.2003, the preliminary decree was amended and it was ordered that after the death of Sh. Prithvi Raj bindra, 1/9 share was divided amongst all five legal heirs Suit No. 10311/16 Page No. 9 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. getting 1/45 share each i.e. as follows : Raj Mohini : 1/9 + 1/45.
Manmohan : 1/9 + 1/45.
Asha : 1/45.
Indu : 1/45.
Sunila : 1/45.
Similarly, after the death of Sh. Mulk Raj Bindra, Baldev Raj Bindra was entitled to 1/9 share along with his wife Sneh Lata and his son Deepak and after the death of Baldev Raj, Sneh Lata was entitled to 1/9 + 1/45 share; Deepak was entitled to 1/9 + 1/45; Ritu to 1/45, Reena to 1/45 and Krishan Mohan is still alive and entitled to 1/3 share of the property. Thereafter again, local commissioner was appointed vide order dated 14.3.2003 and case was fixed for consideration as to mode of partition.
11. In between, plaintiff No. 2 Raj Mohini Bindra, defendant No. 2 Sh. Krishan Mohan Bindra and defendant no.1 (b) Smt. Sneh Lata Bindra and Raj Mohini Bindra expired.
12. As far as defendant no.1(b) Smt. Sneh Lata Bindra is concerned an application u/s 151,152, 153 of CPC was file by defendant Suit No. 10311/16 Page No. 10 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. no.1(a) to (e) and defendant no.2 to modify the preliminary decree on the ground that defendant no.1(b) Smt. Sneh Lata has expired on 18.10.2014 and therefore her share is to be distributed among her legal heir which was allowed vide order dated 27.02.2019 and it is held that defendant no.1(a), defendant no.1(c ) to (e ) in following manner:
defendant no. 1(a) Deepak Raj Bindra = (1/9 +1/45= 6/45+ 6/180) = 1/6th defendant no. 1 (c) Ritu Rai = (1/45 + 6/180) = 1/18 defendant no. 1 (d) Meera Kapoor = (1/45 + 6/180) = 1/18 defendant no. 1 (e) Neeta Chouhan = (1/45 + 6/180) = 1/18
13. As far as share of defendant No. 2 is concerned, on application filed by Deepak Bindra (defendant No. 1a) was given share of Krishan Mohan Bindra on the basis of his Will.
14. Vide order dated 7.1.2019, it was held that Deepak Bindra is entitled to substituted estate of defendant No. 2 Krishan Mohan Bindra.
Thereafter, on application under Section 152 and 153 CPC filed by defendant Nos. 1a and 1e, the preliminary decree was again amended and it was held that Deepak Raj Bindra will be entitled to succeed to the estate of deceased defendant No. 2.
15. Plaintiff No. 2 Raj Mohini Bindra expired and on application Suit No. 10311/16 Page No. 11 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. filed by the plaintiff No. 1, he was substituted as her legal heirs vide order dated 1.10.2008. However on an application was filed by the defendant Nos. 3, 4 and 5 under Section 151 CPC and order 47 Rule 1 CPC to recall the said order on the ground that the defendant Nos. 3 to 5 were never interested in considering the application of plaintiff No. 1 as the plaintiff No. 1 was preferring the Will and relinquishment deed in his favour allegedly executed by plaintiff No. 2 which was seriously disputed by the defendants being forged and fabricated.
16. An application under Section 151 and 153 CPC read with Section 6 of the Hindu Succession Act was filed by the applicant / plaintiff No. 1 stating that after passing of the preliminary decree, Smt. Raj Mohini Bindra i.e. the plaintiff No. 2 died on 14.4.2008 and during her lifetime, Smt. Raj Mohini Bindra had executed Will dated 28.3.1999 and 25.2.2005 in his favour and also executed relinquishment deed dated 14.2.2005 whereby she had relinquished her 2/15 + 1/45 share in addition to 1/45 share in Karol Bagh house claiming by him on account of relinquishment deed which was made in her favour by Ms. Asha Chaudhary vide registered relinquishment deed in case of property No. 5, Original Road, Karol Bagh, Delhi. Therefore, plaintiff has also Suit No. 10311/16 Page No. 12 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. succeeded the share of Smt. Raj Mohini Bindra and thus, he is entitled to 4/15 in HUF property + additional 1/45 share in property No. 5, Original Road, Karol Bagh, Delhi.
17. Only the defendant No. 4 Ms. Indu Gondal has contested the said application by filing reply in which she has taken the objection that the present application has been filed on 27.1.2012 and prior to this, the answering defendant has already filed the case bearing No. 33/11 titled as Indu Gondal Vs. State & Ors. whereby she has sought probate in respect of the last and final Will dated 14.6.2007 executed by by Smt. Raj Mohini Bindra. The aforesaid fact has been concealed deliberately and willfully by the plaintiff from this court with ulterior motive. Hence, it is stated that since the probate of case is still pending therefore, the applicant is not entitled to claim in large share as claimed in the application. Further, on merits, the non applicant / defendant has denied that Smt. Raj Mohini Bindra executed Wills dated 28.3.1999 and 25.2.2005 and relinquishment deed dated 14.2.2005.
18. An application u/s 6 of Hindu Succession Act bread with section 151 CPC dated 8.12.2014 was also file by the defendant no.4 to take into consideration the Hindu Succession (Amendment) Act 2005 Suit No. 10311/16 Page No. 13 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. whereby daughters have been made corparcerners as on sons and are entitle to equal share in ancestral property as son and thus sought amendment in decree by giving defendant no.4 equal share as of plaintiff no.1 Man Mohan Bindra .
19. Above mention all the three application are still pending and is being decided now.
Application filed by the defendant Nos. 3, 4 and 5 under Section 151 CPC and order 47 Rule 1 CPC AND Application u/s 151/ 152 CPC file by plaintiff no.1
20. Both these application are on the same aspect i.e. who will inherit the estate of deceased plaintiff no.2 Raj Mohini Bindra. While plaintiff no.1 in his application for enhancement of his share has stated that Smt. Raj Mohini his mother expired on 14.04.2008 and during her life time Smt. Raj Mohini Bindra had executed Wills dated 28.3.1999 and 25.2.2005 and relinquishment deed dated 14.2.2005. Thus he is entitle to her mother share and since defendant no.5 Smt. Asha Chodhary had relinquish her share in the property no. 5 Original Road Karol Bagh vide relinquishment deed hence he also succeed her share and thus Suit No. 10311/16 Page No. 14 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. preliminary decree dt. 19.02.2003 is to be modified holding that plaintiff no.1 is entitle to 4/45 share in HUF properties and additional 1/45 share in house no. 5 Original road, Karo Bagh Delhi.
21. In reply to said application and in his application u/o 47 rule 1 CPC for recalling the order of impleading the plaintiff no.1 as the only LR of Smt. Raj Mohini Bindra the defendants no.4 has disputed the will and Reliquishment deed relied upon by plaintiff no.2
22. Both the parties have led their evidence in support of their contention. In order to prove that the Wills and relinquishment deed has been executed by Smt. Raj Mohini Bindra, the plaintiff No. 1 Sh. Manmohan Bindra has examined himself as PW1. He has led his evidence by way of affidavit Ex. PW1/A in which he has deposed that the suit property is a HUF property which was consists of Sh. Mulk Raj Bindra and his three sons Sh. Prithvi Raj Bindra, Sh. Balraj Bindra and Sh. Krishan Mohan Bindra. Sh. Mulk Raj Bindra died on 1.12.1954 and his son Sh. Prithvi Raj Bindra died in the year 1978. He further deposed that his elder sister Ms. Asha Chaudhary, who is the defendant No. 3 had relinquished her 1/45 share in Karol Bagh property vide relinquishment deed dated 10.4.1978 in favour of her mother Smt. Raj Suit No. 10311/16 Page No. 15 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Mohini Bindra which is exhibited as Ex. PW1/1 (Mark A1). He further deposed that Smt. Raj Mohini Bindra, during her lifetime, executed registered relinquishment deed dated 14.2.2005 with respect to her 2/15 share as well as 1/45 share in Karol Bagh house acquired by her through relinquishment deed dated 14.2.2005 from her daughter Ms. Asha Chaudhary which is Ex. PW1/2 (Mark A2). He further deposed that Smt. Raj Mohini Bindra also executed two registered Wills dated 28.3.1999 and 25.2.2005 in his favour which he marked as Mark A3 and Mark A4 respectively.
23. The plaintiff has also examined Sh. Naresh Kumar, LDC from SubRegistrar Office, Asaf Ali Road who deposed that the relinquishment deed dated 14.2.2005 was registered vide registration No. 1163 in Additional Book No. I, Vol No. 11359 at page No. 135139 registered on 14.2.2005 and he exhibited the relinquishment deed which was earlier marked as Mark A2 as Ex. PW2/1.
24. Plaintiff has also examined Sh. M.S. Oberoi as PW3 who was the attesting witness of the Wills as well as relinquishment deed. He has led his evidence by way of affidavit Ex. PW3/A. He deposed that Smt. Raj Mohini Bindra accompanied by her brother Sh. Krishan Suit No. 10311/16 Page No. 16 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Prakash Anand came to his residence cum office at G67, Karol Bagh in the year 2005 and expressed her desire that she wants to give up her share in the house at Desh Bandhu Gupta Road, Karol Bagh and wanted him to draft relinquishment deed in favour of her son Manmohan Bindra. She has handed over the relevant papers and also told that there is relinquishment deed also by one of her daughter Ms. Asha Chaudhary whereby she relinquished her share in her favour. He accordingly drafted the relinquishment deed and Will as per instructions of Smt. Raj Mohini Bindra and she also expressed her will to get the same registered. He further deposed that Smt. Raj Mohini Bindra put her signatures on relinquishment deed at points A1 to A5 and Sh. Manmohan Raj Bindra at point B and he at point C to C1 and one Sh. Gurdyal Singh at point D before the SubRegistrar. He stated that the relinquishment deed is Ex. PW2/1. He also deposed though later on Smt. Raj Mohini Bindra executed her Will dated 25.2.2005 before the SubRegistrar and appended her signatures at points A1 to A4 in his presence and in presence of Sh. Gurdyal Singh and SubRegistrar and he signed at points B to B1 as attesting witness and Sh. Gurdyal Singh at point C on the Will dated 14.2.2005. He proved the Wills as Ex. PW3/2. Suit No. 10311/16 Page No. 17 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
25. On the other hand, defendants have examined only Smt. Indu Gondal as DW4 who in her evidence led through affidavit Ex. D4W1/A has deposed that Smt. Raj Mohini Bindra had executed her last Will on 14.6.2007. She filed a probate case before the Hon'ble High Court bearing case No. 33/11 titled as Indu Gondal Vs. State & Ors. and she further deposed that the plaintiff was not maintaining his mother Smt. Raj Mohini Bindra since last more than 20 years and she was not residing with the plaintiff. She was living with her and she was taking her care. Plaintiff somewhere in the year 2005 somehow managed and took Smt. Raj Mohini Bindra and kept her for 56 months and during that period, plaintiff forged and fabricated Wills and relinquishment deed and against throw her out of the property No. 5, Original Road, Karol Bagh. She also deposed that her mother has told her several times that plaintiff forcefully obtained her signatures on many papers but she never visited any Government office with the plaintiff and never executed any document in favour of the plaintiff.
26. I have considered the submissions and have gone through the record.
27. First of all, I shall decide whether the relinquishment deed Suit No. 10311/16 Page No. 18 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. dated 14.2.2005 has been executed by Smt. Raj Mohini Bindra or not because if it is proved that the same has been executed by her then the Will made by her dated 14.6.2007 and the alleged Will dated 25.2.2005 made by her in favour of the applicant, both, will be infructuous because once she relinquished her share, she left with no share to bequeath through Will either in favour of plaintiff no.1 or in facvour of defendant no.4. From the testimony of PW2 Naresh Kumar who is an official of Sub Registrar office III, Asaf Ali Road it is prove that relinquishment deed EX PW2/1 is dated 14.2.2005 which is duly registered vide registration No. 1163, Additional Book No. I, Vol. No. 11359 at pages 135139. From the testimony of PW2, it is proved that the said Will is registered with the SubRegistrar office, Asaf Ali Road. Nothing much has came out in his cross examination to disbelieve the same.
28. PW3 has deposed that he has drafted the relinquishment deed Ex. PW1/2 at the instance of Smt. Raj Mohini Bindra and got the same registered and signed as attesting witness on the same and besides him, one Gurdyal Singh also signed the same. He was cross examined at length by the non applicant / defendant Smt. Indu Gondal. In his cross examination, he has deposed that it might by 15 days prior Suit No. 10311/16 Page No. 19 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. to registration of the document, he drafted the relinquishment deed and GPA. Thus, documents were not drafted on the same date and three different in between those 15 days from the date of registration. Smt. Raj Mohini Bindra came with Sh. Krishan Prakash Anand who met him in a get together at Gymkhana Club where he comes very frequently. He was not known to Smt. Raj Mohini Bindra prior to 15 days of registration of document. She had came to him approximately three times. On 14.2.2005, she did not come to him and voluntarily stated that he had gone to SubRegistrar office where he met her. Besides Raj Mohini Bindra, Manmohan Bindra was present. He had not got the relinquishment deed registered but it was some agent outside the office of SubRegistrar office to help in registration of document. Smt. Raj Mohini Bindra and Sh. Manmohan Bindra put their signatures in his presence. Thereafter, this document was presented before the Sub Registrar. He stated that he never met the person Gurdyal Singh prior to that day or thereafter. He stated that he did not remember when the Will was executed, Manmohan Bindra was present on that day or not. He do not remember on the day of registration of the Will, who accompanied Raj Mohini Bindra. He cannot say whether she accompanied Manmohan Suit No. 10311/16 Page No. 20 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Bindra or not. He further stated that he do not know who has purchased the papers for preparation of relinquishment deed or when the same were purchased. He had explained her in normal language which is mix of Hindi, English and Punjabi. He denied the suggestion that she was only conversant with Punjabi only. He put the relinquishment deed Ex. PW2/1. He stated that the cutting on all the pages having signatures of Manmohan Bindra. He was not present at the time of registration of relinquishment deed and Will. He denied the suggestion that in his presence, Sh. M.S. Kachroo identified Raj Mohini Bindra before Sub Registrar. He did not know whether Raj Mohini Bindra was 88 years of age at that time. He denied the suggestion that he has prepared the documents at the instance of Manmohan Bindra and also witnessed on documents at his instance.
29. From the cross examination of PW3, nothing much has came out to discard his testimony. No suggestion has been given to the witness that the signatures on the relinquishment deed is not of Raj Mohini Bindra. He is an independent witness. I do not see any reason as to why this witness will depose falsely.
30. Further, as stated above, the said relinquishment deed is Suit No. 10311/16 Page No. 21 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. registered. It is the duty of the SubRegistrar to verify whether the person whose names are mentioned in the document as executant are the same who have appeared before him for registration. It is also his duty to inquire whether the document is executed by him or not and same is sign by him or not and only after that he register the document as provided under Section 32 of the Registration Act 1908. As per illustration (e) of Section 114 of Indian Evidence Act, there is a presumption that all the official acts have been done properly.
31. PW1 also in his testimony has deposed that his mother executed relinquishment dated 14.02.2005. In his cross examination has denied that on 14.2.2005 he has fraudulently got executed the relinquishment deed from his mother. He denied the suggestion that she was not aware with the contention of the documents which she had executed. Again, no suggestion has been given to him that signatures on relinquishment deed is not of Raj Mohini Bindra. Hence nothing much has came out in his cross examination to disbelieve the same.
32. In these circumstances, in my view from the testimony of PW3, which is duly corroborated with the testimony of PW1 Manmohan Raj Bindra and PW2 it is prove that relinquishment deed EXPW2/1 was Suit No. 10311/16 Page No. 22 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. executed by Smt. Raj Mohini. As far as contention of the Ld. Counsel for defendant that the relinquishment and will was got executed by the plaintiff without her knowledge. In my view mere oral contention of the defendant is not sufficient to discard the testimony of plaintiff no.1/ PW1 and PW3. Once the execution of document is proved, the onus is shifted upon opposite party to prove that the same was got fraudulently executed by the person in whose favour the documents is or that when the same was executed by the executant, she was not of sound mind.
33. From the testimony of DW4, who led her evidence through affidavit Ex. D4W1/A, it is evident that she has not stated in her testimony that the relinquishment deed is not signed by her mother. She has admitted in her examination in chief that in the year 2005, plaintiff somehow managed and took Raj Mohini Bindra in his house No. 5, Original Road and kept her there only for 56 months and during that period, the plaintiff forged and fabricated the Will dated 25.2.2005 and relinquishment deed dated 14.2.2005. She has also stated that Smt. Raj Mohini Bindra had informed her several times that the plaintiff forcefully obtained her signatures on many papers / documents but she never visited any Government office with the plaintiff. She has not deposed in Suit No. 10311/16 Page No. 23 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. her testimony any date, month or year when her mother Smt. Raj Mohini Bindra had told her that plaintiff has obtained her signatures fraudulently on many papers / documents and she has also not explained why she has not filed any complaint to the Police or any other authority or even made any application before this court that Sh. Manmohan Bindra has got her mother's signatures forcefully on some papers. Even, after her death, no application was filed by the DW4 before this court or any complaint to the Police that her mother's signatures was obtained fraudulently.
34. In my view, merely because the plaintiff during lifetime of Smt. Raj Mohini Bindra did not claim for amendment of preliminary decree by enhancing her share on the basis of relinquishment deed, it cannot be said that the said relinquishment deed is forged and fabricated. Therefore, taking into consideration the testimony of all the witnesses, I held that the plaintiff has been able to prove that Smt. Raj Mohini Bindra had executed relinquishment deed Ex. PW2/1 dated 14.2.2005 whereby she relinquished her share in the suit property including the share of her daughter Asha Chaudhary, which Asha Chaudhary had relinquished in her favour, in favour of her son i.e. the Suit No. 10311/16 Page No. 24 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. plaintiff. Hence, the plaintiff is entitled to receive entire share of Smt. Raj Mohini Bindra and also the share of Asha Chaudhary in Karol Bagh property.
35. As stated above, since Smt. Raj Mohini Bindra has relinquished her share during her lifetime, she has no capacity to bequeath her property through Will either in favour of Manmohan Bindra vide Will dated 25.2.2005 or in favour of Smt. Indu Gondal vide Will dated 14.6.2007. Hence, there is no need to decide whether the said Wills dated 25.2.2005 and 14.6.2007 were executed by Smt. Raj Mohini Bindra or not.
36. In view of the aforesaid discussion, I held that plaintiff no.1 is only legal heir of Smt. Raj Mohini Bindra and there is no need to recall / review the order dated 1.10.2008 by which plaintiff no.1 was impleaded as only legal heir of the plaintiff no.2 Late. Smt. Raj Mohini Bindra. Hence the application u/o 47 rule 1 CPC file by defendant no.3 to 5 is hereby dismissed being without any merit.
37. Further, I allow the application under Sections 151 and 152 CPC filed by plaintiff no.1 to hold that he is entitled to the share of Smt. Raj Mohini Bindra and amend the preliminary decree accordingly. Suit No. 10311/16 Page No. 25 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Application u/s 6 of Hindu Succession Act file by defendant no.4
38. Now, coming to the application filed by the defendant No. 4 Smt. Indu Gondal under Section 6 of the Hindu Succession Act in which she has stated that the Hindu Succession Act has been amended and therefore, in view of the amendment in Hindu Succession Act, the daughter became coparcerners by birth as same right as the son and since no alienation of the property has taken place till date and therefore, the defendant No. 4 and her sisters are entitled to a share which is equal to that of plaintiff No. 1. No reply to the said application was filed.
39. It is argued by the counsel for the defendant No. 4 that in view of amendment in Hindu Succession Act vide Amended Act, 2005, daughter of a coparcener become coparcerner by birth in her own right in the same manner as a son hence, the defendant No. 1 and her sisters are entitled to the equal share as that of the plaintiff No. 1 in HUF property. In support of his contention, he has relied upon the Judgment Danamma @ Suman Surpur & Anr. Vs. Amar 7 Ors., 2018 (3) SCC 343; Prema Vs. Nanjegowda & Ors., in Civil Appeal No. 2481/05 dated 10.5.2011 and Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr. in Civil Appeal No. 8538/11 dated 12.10.2011. Suit No. 10311/16 Page No. 26 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
40. On the other hand, Ld. Counsel for the plaintiff No. 1 has argued that since in this case, the property was ancestral initially owned by Sh. Mulk Raj Bindra who died on 1.12.1954 and at that time, he has legal heirs i.e. Smt. Draupadi Devi, wife and three sons namely Prithvi Raj Bindra, Balraj Bindra and Krishan Mohan Bindra and three daughters namely Uma Chaudhary, Kamla Chopra and Nirmal Kapoor and since he has died prior to 1956 i.e. prior to coming into force Hindu Succession Act, 1956 therefore, his property will be devolved upon his coparcerners upto three generations hence, his property will be devolved upon his three sons Prithvi Raj Bindra, Balraj Bindra and Krishan Mohan Bindra and third generation i.e. Manmohan Bindra who is son of Prithvi Raj Bindra and thus, Manmohan Bindra would get 1/9 share and his wife would get 1/9 share and Prithvi Raj Bindra would get 1/9 share and after the death of Prithvi Raj Bindra, his 1/9 share will be divided among his widow and son i.e. plaintiff No. 1 and three daughters i.e. Asha Chaudhary, Indu Gondal and Sunita Chopra. Therefore, all will get 1/45 share each and the share has been accordingly given to them in the preliminary decree. He submits that since no appeal has been filed against the preliminary decree hence, the share cannot be changed after Suit No. 10311/16 Page No. 27 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. passing of amendment of Hindu Succession Act by way of Hindu Succession Amended Act, 2005 by which the daughters were also made coparcerners as that of sons. In support of his contention, he has relied upon the Judgment titled as Arshnoor SIngh Vs. Harpal Kaur, VI (2019) SLT 1 and Shyam Narain Prasad Vs. Krishna Prasad & Ors., (2018) 7 SCC 646.
41. I have considered the submissions and have gone through the Judgments.
42. It is undisputed fact suit properties are ancestral property owned by Sh. Mulak Raj Bindra and Sh. Mulk Raj Bindra has expired on 1.12.1954 and Prithvi Raj Bindra has expired on 26.3.1978. It is also undisputed fact that Sh. Mulk Raj Bindra when died, he had three sons i.e. Prithvi Raj Bindra, Balraj Bindra and Krishan Mohan Bindra and when Prithvi Raj Bindra died, he had his widow and one son i.e. plaintiff No. 1 and three daughters i.e. defendant Nos. 3 to 5. It is also undisputed fact that Prithvi Raj Bindra died on 26.3.1978 whereas Balraj Bindra died on 11.5.1991 and Krishan Mohan Bindra died on 3.5.2001. Preliminary decree in these case passed on 01.09.1997 and which was amended on 19.02.2003. No appeal has been file to said amendment in Suit No. 10311/16 Page No. 28 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. preliminary decree.
43. Now reverting back to the case, whether decree is to be amended in view of amendment in Hindu Succession Act in 2005. By amendment is section 6 of Hindu Succession Act the daughters has been made as coparcerners by way of Hindu Succession ( amendment ) Act. 2005. Amended section 6 is reproduce as below:
"[6 Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of Suit No. 10311/16 Page No. 29 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies 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, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the predeceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter; and
(c) the share of the predeceased child of a predeceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the Suit No. 10311/16 Page No. 30 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. partition, shall be allotted to the child of such predeceased child of the predeceased son or a predeceased daughter, as the case may be.
Explanation. --For the purposes of this subsection, 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.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or greatgrandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this subsection shall affect--
(a) the right of any creditor to proceed against the son, grandson or greatgrandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been Suit No. 10311/16 Page No. 31 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "greatgrandson" shall be deemed to refer to the son, grandson or greatgrandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act 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. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender Suit No. 10311/16 Page No. 32 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:-- "6A. Equal rights to daugher in co parcenary property.-- Notwithstanding anything contained in section 6 of this Act--
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a co parcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co parcenary property shall be so divided as to allot to a Suit No. 10311/16 Page No. 33 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990".
44. In Parkash and others Vs. Phuavati and others, (2016) SCC36 it is held that when both coparcerner and his daughter are alive Suit No. 10311/16 Page No. 34 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. the Hindu Succession amendment Act will apply. The relevant para of the judgement are reproduce as below:
"17. The text of the amendment itself clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is Page 13 etc. always prospective unless either expressly or by necessary intendment it is retrospective3. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social Suit No. 10311/16 Page No. 35 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language Shyam Sunder vs. Ram Kumar (2001) 8 SCC etc. of the statute. The proviso keeping dispositions or alienations or partitions prior to 20 th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20 th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub section 5 or under the Explanation."
Further in para 26.6 it is held that:
26.6. In S. Sai Reddy case (supra), the question for consideration was whether even after a preliminary decree Suit No. 10311/16 Page No. 36 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
is passed determining the shares in partition, such shares could be varied on account of intervening events at the time of passing of the final decree. In the said case, partition suit was filed by a son against his father in which a preliminary decree was passed determining share of the parties. Before final decree could be passed, there was an amendment in the Hindu Succession Act (vide A.P. Amendment Act, 1986) allowing share to the unmarried daughters. Accordingly, the unmarried daughters applied to the court for their shares which plea was upheld. The said judgment does not deal with the issue involved in the present matter. It was not a case where the coparcener whose daughter claimed right was not alive on the date of the commencement of the Act nor a case where shares of the parties stood already crystalised by operation of law to which the amending law had no application. Same is the position in Prema and Ganduri cases (supra)".
45. In Danamma alias Suman Surpur (2018) SCC 342 Honble Supreme Court has held that amendment in section 6 of Hindu Succession Act will make daughter entitle to the share as coparceners where final decree is not passed. The fact of this case were that the one Gurulingappa Savadi had two sons Arun Kumar and Vijay and two daughters. He died in the year 2001. After the death of Arun Kumar his Suit No. 10311/16 Page No. 37 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. son Amar file suit for partition stating that appellant were not coparceners as they were born prior to enactment of Hindu Succession Act, 1956. Trial Court and High Court held that appellant are not entitle to any share as they are not coparceners despite the contention raised by them that that are coparceners in view of amendment in Hindu Succession Act, in 2005. The relevant para is reproduce as below : "21) The controversy now stands settled with the authoritative pronouncement in the case of Prakash & Ors. v. Phulavati & Ors.6 which has approved the view taken by the aforesaid High Courts as well as Full Bench of the Bombay High Court. Following discussion from the said judgment is relevant:
"17. The text of the amendment itself clearly provides that the right conferred on a "daughter of a coparcener" is "on and from the commencement of the Hindu Succession (Amendment) Act, 2005". Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Sunder v. Ram Kumar, (2001) 8 SCC Suit No. 10311/16 Page No. 38 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. 24, paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. The contention of the respondents that the amendment 5 AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR 2007 Kar 4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v. Zahoor Ahmad 6 (2016) 2 SCC 36 should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations Suit No. 10311/16 Page No. 39 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. or partitions prior to 20122004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20122004. Notional partition, by its very nature, is not covered either under the proviso or under subsection (5) or under the Explanation.
19. Interpretation of a provision depends on the text and the context. [RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424, p. 450, para 33] Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. [Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. [District Mining Officerv. TISCO, (2001) 7 SCC 358]
20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of Suit No. 10311/16 Page No. 40 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. interpretation have been applied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591]
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. [Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object of interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1) and subsection (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20122004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20122004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of Suit No. 10311/16 Page No. 41 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20122004. In no case statutory notional partition even after 20122004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 992005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20122004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
22. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be Suit No. 10311/16 Page No. 42 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that "the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change."
23. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming Suit No. 10311/16 Page No. 43 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from subs (1)(a) and (b).
24. Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram7 in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary:
"According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasicorporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 127). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third Suit No. 10311/16 Page No. 44 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. generation, acquire on birth ownership in the ancestral properties is common;
secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such coownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors."
25. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a dughter who is a coparcener.
26. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.8 held that Suit No. 10311/16 Page No. 45 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005".
46. But in Mangammal Alias Thulasi and another (2018) 15 SCC 662 Honble Supreme Court has held again taken the view taken in Prakash (supra) case and held that the daughters will be entitle only in case when both coparceners and his daughters are alive on the day of enactment of amendment in Hindu Succession Act. The relevant para is reproduce as below:
"15. Moreover, under Section 29A of the Act, legislature has used the word "the daughter of a coparcener". Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989. The similar issue came up for the consideration before this Court in Prakash & Ors. vs. Suit No. 10311/16 Page No. 46 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Phulavati & Ors., (2016) 2 SCC 36, this Court while dealing with the identical matter held at Para 23 as under:
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born..." (emphasis supplied by us)
16. It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt, interalia, with the dispute of daughter's right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash & Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property.Suit No. 10311/16 Page No. 47 of 56
Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
17. Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu Joint Family Property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted".
47. In Vineeta Sharma Vs. Rakesh Sharma 2018 SCC online Del 9092 Honble High Court while relying upon judgement Mangalmmal and Parkash (supra ) held that amended section 6 is to be considered prospective in nature. The relevant para of the judgement is reproduce as below: "22. Insofar as the High Court is concerned, in the light of the latest decision in Mangammal (supra) of the Supreme Court, the decision in Phulavati (supra) is to be applied. Moreover, this Court has to examine the correctness of the trial court judgment in the facts of the present case. The Trial Court, followed the law prevalent on the date when it pronounced the judgment i.e. 24th November, 2016. It held that the amended section 6 ought to be considered as being Suit No. 10311/16 Page No. 48 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. prospective in nature. On the date when the suit was filed, Section 23 of the HSA was in force and the entire home was treated as a dwelling house. There was no tenant in the suit property. The Plaintiff was not a coparcener on the date when her father passed away. Admittedly, the Plaintiff was married during her father's life time and she has neither deserted nor separated from her husband. Thus, she did not have right to seek partition when her father died as she was not a coparcener. Her rights would be governed by the un amended Section 6 of the HSA. Thus, the Trial Court rightly applied the law as it prevailed on the date when the Trial Court decided the matter".
48. Taking into consideration all the above mention Judgments, I held that since in this case Mulak Raj Bindra and Prithivi Raj Bindra has expired prior to enactment to amendment in Hindu Succession Act hence the benefit of amendment in Section 6 of Hindu Succession Act would not be available to the defendant No. 4 to 6 who are the daughters of Prithvi Raj Bindra and therefore their share will not be increased. Hence the application file by defendant no.4 is hereby dismissed.
49. In view of the aforesaid discussion, and decision on various application by which preliminary decree were amended, I hold that the parties shall have shares as under : Suit No. 10311/16 Page No. 49 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
1) Plaintiff no.1 shall have 1/9 +1/45 his share and 1/9 + 1/45 share of deceased plaintiff no.2 Raj Mohini and 1/45 of defendant no.5 Asha in property no. 5 original Road Karol Bagh = 1/9+ 1/45 1/9+1/45 = 13/45 share Plaintiff no.1 shall have share in other two properties i.e. House no. 173 Model Town, Jullandhar and agriculture land in Basti Shah Kuli Jullandhar = 1/9+1/45 his share + 1/9+1/45 share of deceased plaintiff no.2 = 4/15
2) defendant no. 1(a) Deepak Raj Bindra is entitle to (1/9 +1/45= 6/45+ 6/180) =1/6 th + 1/3 share of defendant no.2 Krishan Raj Bindra thus he will be entitle to 1/ 2 share in all the three properties
3) defendant no. 1 (c) Ritu Rai = (1/45 + 6/180) = 1/18 in all the three properties
4) defendant no. 1 (d) Meera Kapoor = (1/45 + 6/180) = 1/18 in all the three properties
5) defendant no. 1 (e) Neeta Chouhan = (1/45 + 6/180) = 1/18 in all the three properties
iii) Defendant no.4 indu Gondal 1/45 in all the three Suit No. 10311/16 Page No. 50 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. properties
iv) defendant no.5 Asha in Karol Bagh property = nil since relinquished to Raj Mohini and 1/45 share in both Jalandhar properties.
v) Defendant no. 6 Sunila 1/45 in all the three properties.
50. Now coming to next question how these properties will be divided by metes and bound. Forthis purpose Sh. Parag Chawla Advocate was appointed as Local Commissioner. He in his report dated 15.10.2005 has observed that it is not possible to divide the property by metes and bounds. The relevant portion is reproduced as under : "3. The property at 5, Original Road, W.E.A., Karol Bagh, New Delhi, measures about 1323.86 Sq. Yds., the property at 173, Model Town, Jalandhar City is built on 2 canals and 9.1 marls, respectively. The agricultural land at Basti Shah Quli, Tehsil & Dist. Jalandhar (Punjab) measures about 4 canals. As per the preliminary decree passed by the Ld. Addl. District Judge, Sh. Manmohan Raj Bindra has 1/9th + 1/45th shares in all these properties. Similarly, Smt. Raj Mohini Bindra W/o Sh. Prithvi Raj Bindra has 1/9th + 1/45th share in the suit properties. The three daughters of Sh. Prithvi Raj Bindra namely Smt. Asha Chaudhary, Smt. Indu Gondal and Smt. Sunita have 1/45th share each in the suit properties. Suit No. 10311/16 Page No. 51 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
As far as the legal heirs of Sh. Balraj Bindra, the defendant No. 1 are concerned, Smt. Sneh Lata Bindra, W/o Sh. Balraj Bindra has 1/9 th + 1/45th shares in the suit property. Sh. Dipak Raj Bindra, S/o Sh. Balraj Bindra has 1/9th + 1/45th shares in the properties. The three daughters of Sh. Balraj Bindra, i.e. Smt. Ritu Rai, Smt. Meena Kapur and Smt. Neeta Chauhan has 1/45 th share each in the suit properties.
4. As far as Sh. Krishan Mohan Bindra, the defendant No. 2 has one third share in all the three suit properties. It has been proposed by Sh. Krishan Mohan Bindra and the legal heirs of Sh. Balraj Bindra that the three suit properties cannot be partitioned by metes and bounds and the only course open in the said circumstances is that the properties be sold and the proceeds be divided amongst the parties in the proportion of their share as per the orders passed by the Court. It has also been stated in the proposals filed by them that there are 11 Coowners of the suit properties and it is not been possible to divide the properties by metes and bounds. It is admitted case of the parties that the house at 5, Original Road, WEA, Karol Bagh, New Delhi is a double storey house and house at 173, Model Town Jalandhar is a single storey house. The agricultural land in Jalandhar is an open piece of land. As per the proposals given by the daughters of Sh. Prithvi Raj Bindra and also the legal heirs Suit No. 10311/16 Page No. 52 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. of Sh. Balraj Bindra, the properties cannot be divided by metes and bounds. This stand has also been taken by Sh. Krishan Mohan Bindra, who has admittedly onethird share in the suit properties. The plaintiffs have not given any proposals nor have they rebutted the suggestions / proposals given by the other coowners of the suit properties. After seeing the suit properties and also taking into consideration that there are 11 Coowners of the suit properties. I am of the view that the properties cannot be partitioned and it will be appropriate to sell the properties and have the proceeds divided amongst the parties as per their respective shares".
51. The plaintiff has filed objections to the report of Local Commissioner but he also did not suggest in what manner the property can be divided. In my view, considering the numbers of persons in which the shares of the properties is to be divided, it would not be possible to divide the property by metes and bounds hence, the only way to effect the partition is to sold the property and divide the sale proceeds among the parties as per their respective shares in the suit properties. Therefore, I hold that the suit properties Nos. 5, Original Road, W.E.A., Karol Bagh, New Delhi, measures about 1323.86 Sq. Yds.; the property Suit No. 10311/16 Page No. 53 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. at 173, Model Town, Jalandhar City is built on 2 canals and 9.1 marls, respectively and the agricultural land at Basti Shah Quli, Tehsil & Dist. Jalandhar (Punjab) measures about 4 canals be sold by way of auction in case the parties are failed to sale the same mutually within three months.
RELIEF.
52. In view of above discussion, I pass final decree holding that the parties shall have shares as under :
1) Plaintiff no.1 shall have 1/9 +1/45 his share and 1/9 + 1/45 share of deceased plaintiff no.2 Raj Mohini and 1/45 of defendant no.5 Asha in property no. 5 original Road Karol Bagh = 1/9+ 1/45 1/9+1/45 = 13/45 share Plaintiff no.1 shall have share in other two properties i.e. House no. 173 Model Town, Jullandhar and agriculture land in Basti Shah Kuli Jullandhar = 1/9+1/45 his share + 1/9+1/45 share of deceased plaintiff no.2 = 4/15
2) defendant no. 1(a) Deepak Raj Bindra is entitle to (1/9 + 1/45= 6/45+ 6/180) =1/6 th + 1/3 share of defendant no.2 Krishan Suit No. 10311/16 Page No. 54 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.
Raj Bindra thus he will be entitle to 1/ 2 share in all the three properties
3) defendant no. 1 (c) Ritu Rai = (1/45 + 6/180) = 1/18 in all the three properties
4) defendant no. 1 (d) Meera Kapoor = (1/45 + 6/180) = 1/18 in all the three properties
5) defendant no. 1 (e) Neeta Chouhan = (1/45 + 6/180) = 1/18 in all the three properties
iii) Defendant no.4 indu Gondal 1/45 in all the three properties
iv) defendant no.5 Asha in 5 Original Road Karol Bagh = nil since relinquished to Raj Mohini and 1/45 share in both Jalandhar properties.
v) Defendant no. 6 Sunila 1/45 in all the three properties.
53. Further, I pass decree that the suit properties Nos. 5, Original Road, W.E.A., Karol Bagh, New Delhi, measures about 1323.86 Sq. Yds.; the property at 173, Model Town, Jalandhar City is built on 2 canals and 9.1 marls, respectively and the agricultural land at Basti Shah Quli, Tehsil & Dist. Jalandhar (Punjab) measures about 4 canals be sold by way of auction in case the parties are failed to sale the same mutually Suit No. 10311/16 Page No. 55 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors. within three months. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary Digitally signed by compliance. SANJEEV SANJEEV KUMAR KUMAR Date: 2019.12.16 16:36:34 +0530 Announced in the open court (Sanjeev KumarI) on 16.12.2019 Additional District Judge12, Central Tis Hazari Courts, Delhi 16.12.2019 Suit No. 10311/16 Page No. 56 of 56 Manmohan Raj Bindra & Anr. Vs. Balraj Bindra & Ors.