Bombay High Court
Dr. Nilkanth Krishnarao Apte vs Dr. Ramchandra Krishnarao Apte And ... on 25 April, 1990
Equivalent citations: AIR1991BOM10, 1990(3)BOMCR328, AIR 1991 BOMBAY 10, (1990) 3 BOM CR 328 (1991) 1 HINDULR 224, (1991) 1 HINDULR 224
JUDGMENT
1. These are cross-suits for partition and separate possession pertaining to the immovable and movable property set out with sufficient precision in Ex. D annexed to the plaints in the two suits.
2. N. K. Apte and R. K. Apte being full brothers are the sons of the late Krishnarao and Krishnabai respectively. Krishnarao was practising and residing at Baroda. He died leaving behind his widow and two sons who succeeded to his estate comprising two houses, shares and cash. The houses were disposed off by the trio. N. K. Apte had come to Bombay and after completing his M.B.B.S. and M.S., started practising here. After the passing away of Krishnarao in 1951, Krishnabai and R. K. Apte also migrated to Bombay. With the assets inherited from Krishnarao, a plot of land was purchased at Chembur. The first storey comprising six rooms was constructed and the cost of this structure plus the plot came to about Rs. 49,000/-. There was a vertical expansion in later years with additions on the 1st and 2nd floors -- the latter comprising a terrace room. In relation to these additions and a garage, Krishnabai and R. K. Apte passed a document in favour of N. K. Apte. This document dated 20-6-1968 was in triplicate and a photo copy thereof is at Ex. P-1. It recites an acknowledgement by Krishnabai and R. K. Apte that the additions are of N. K. Apte's ownership, that he had orally gifted the same to his wife Mrs. Saroj Apte and that they would not have any objection to the donee letting it out to any person of her choice. In return Mrs. Apte was to pay the taxes and as soon as there was a letting out her husband would make over one room on the ground floor to R. K. Apte and also discontinue paying Rs. 50/- per month to Krishnabai. This document was acted upon. In 1974 or thereabouts, relations between N. K. Apte and R. K. Apte took a turn for the worse. On 12-12-1974 the former's Solicitors addressed Ex. P-9 to R. K. Apte giving him three options. The notice not having had any effect, N. K. Apte instituted Suit No, 155 of 1976. To this suit the persons impleaded were R. K. Apte and Mrs. Saroj Apte. An attempt was made by the former's children to get themselves impleaded to the suit. N. K. Apte resisted the move and the chamber summons for joinder came to be dismissed. Down, but not out, one of the children viz. son Viraj, filed the 1979 suit. The two brothers, their spouses and children are all impleaded to this suit.
3. N. K. Apte claims a partition of the plot, the ground floor annexed thereto, such F.S.I. as remains and the movables listed in Ex. D (common to both the suits). As to the upper floors, these were constructed by him with his money and R. K. Apte and Krishnabai had acknowledged the non-existence of any right or interest therein. For that reason the said floors could not be included in the divisible hotchpot. From items II to IV of Ex. D, R. K. Apte has disposed of quite a few. This entitles N. K. Apte to half the sale proceeds i.e.. Rs. 15,222/-. As to the division of the house, it is incapable of a metes and bounds partition. The only alternative is to sell the same and distribute the sale proceeds between him, R. K. Apte and Saroj Apte. The reliefs claimed are a declaration that R. K. Apte and he have equal shares in land and ground floor, Item V of Ex. D, sale of house with the proceeds divisible between him, his wife and brother and a division of the entire property in proportion to their shares. This stand is supported by his wife and children.
4. Viraj contends that the properties listed in Ex. D which include the house and movables is ancestral property and he has an interest therein by birth. Writing dt. 20-6-1968 (Ex. P-1) is the result of undue influence and pressure brought upon R. K. Apte by Krishnabai at the instance of N. K. Apte. Therefore and even otherwise, the same does not affect his interest in the estate. He prays for separation of his share in the property. In making this claim, Viraj is supported by his parents and sister.
5. N. K. Apte and his family's defence to the suit filed by Viraj is that a severance of the joint family status took place between him, his brother and mother as far back as 1952. For this reason, the claim put forth by Viraj is without a foundation. Assuming otherwise, Viraj has no right to sue for partition in the lifetime of R. K. Apte. A plea rendered ineffective by the subsequent joinder of Suman Apte was that her non-joinder was fatal to the suit.
6. The two suits have been consolidated for the purposes of evidence and judgment. Issues framed in the 1979 suit adequately reflect the controversy between the parties. These are given below with my findings :
ISSUES FINDINGS
1.
Does plaintiff prove that defendant 3 was made to affix his signature to document dt. 20-6-1968 pursuant to the undue influence and pressure brought to bear upon him by his mother Krishnabai acting at the instance of defendant 1 ?
No
2.
(a). Whether defendant 3 was no: in law entitled to enter into the transactions recorded in documents dt. 15-7-1960 and 20-6-1968?
Yes; he was not entitled to visa-vis Ex.P-1 and he did not enter into the transaction of document dt. 15-7-1960
(b). Whether the said writings do not affect the interest of plaintiff, if any, in the suit property ?
Yes; they do not affect.
3. What interest, if any, has plaintiff in the suit property ?
1/3rd in the half share of R. K. Apte.
4. Whether the suit having been filed by the plaintiff during the lifetime of his father defendant 3 is not maintainable.
The suit is-maintainable.
A-4.
Is the suit bad for the non-joinder of plaintiff's mother?
Does not
5. Do defendants 1 and 2 establish the notional/oral partition as between defendant 1, defendant 3 andKrishnabai in the year 1952 ? If so, effect ?
Does not establish.
6. Relief and costs?
See order.
7. The first issue incoporates the R. K. Apte group's attack upon Ex.P-1 because of its being the result of undue influence and pressure brought upon R. K. Apte by Krishnabai at the behest of N. K. Apte. Viraj in his plaint avers that N. K. Apte was the Karta of the family after the demise of Krishnarao. He had considerable influence over Krishnabai and R. K. Apte was in no position to resist him because of his poor health. Significantly, R. K. Apte who has filed a written statement in the 1979 suit also, does not give therein the particulars of the undue influence brought to bear upon him or Krishnabai. This is so, though it is asserted that Ex. P1 is "illegal and invalid". Undue influence being a vitiating factor, the law requires one pleading it to give sufficient particulars so as to enable the opponent to know what exactly is the case he has to meet. Viewed thus the pleadings are anything but adequate. And where there be so fatal a hiatus, the proof has to be ignored as an afterthought. This aspect apart, what the father and son say on the subject proves no pressure or influence, much less, undue.
8. An attack of typhoid is said to be the start of R. K. Apte's debility -- physical and mental. It affected his capacity for study with the result that though aiming at a glittering career in Allopathy he had to be content with a course of sorts in Ayurved. As against this N. K. Apte was in good health and could pursue his studies and career with vigour. The result was that he has ended up as one of the top Surgeons of Bombay while R. K. Apte continues to stagnate as one fated to suffer oblivion. The only permanent impairment R. K. Apte suffered as the result of typhoid, was a weak memory -- so claim the sufferer and his son. Having seen the duo testifying in the Court and for quite sometime, I must say that neither is an innocent. Viraj had the intelligence to give only such answers as suited him. Otherwise, he feigned forgetful-ness or an inability to reply. As to R. K. Apte we have his own admission that he did not sign Ex. P1 at once. N. K. Apte left the document with him for two days as he wanted to study the same. His initial reaction was one of shock -- shock, that N. K. Apte should have asked him and their mother to sign Ex. P1. The mother overcame his resistance by threatening suicide for she did not want to lose N. K. Apte's support -- he being an eminent person and supplying medicine etc. to her. To sound convincing Krishnabai made a reference to the then prevailing reluctance to invite her to his home. This is unbelievable seeing that R. K. Apte himself speaks of Krishnabai's life-long aversion to staying with N. K. Apte and resentment at domineering attitude of that person and his wife. In fact R. K. Apte says that he was the peace-maker in the family, for difficult though Saroj Apte was, he made it a point to get along with her. This he did and not because he had an inferiority complex or was financially dependent on N. K. Apte. Though he does not say so, the reason for his pacjficity seems to have been his innate goodness. He goes on to admit that he was not afraid of nor had his brother tried to frighten him. N. K. Apte's eminence did not sway Krishnabai in the choice of the son with whom she was to make a home. If R. K. Apte is to be believed she was modestly well off. Therefore she could not have needed the financial support of N. K. Apte. As elf, he had consulted his wife and a lawyer before signing Ex. PI. That N. K. Apte's money went into the construction of the upper floors is not disputed by witness, however inconsistent he be about Krishnabai also having contributed towards the construction. An attempt was made by him to maintain that taxes for the upper floors were also paid by Krishnabai along with or apart from N. K. Apte. What is not disputed is that these floors were used by N. K. Apte only as long as he lived at Chembur. Tenants inducted therein were his tenants and the rent received from them was appropriated only by that person or Saroj Apte. In fact he and his mother never asked for a share in the rent. Similarly he was forced to admit, though with some difficulty, that the brothers were paying taxes in proportion to the portions in their respective possession. Ex. PI was acted upon for N. K. Apte discontinued paying Rs. 50/- per month to Krishnabai upon his making over one room on the ground floor to R. K. Apte. R. K. Apte's scant regard for the truth is evident from his denying that he was an executant of the sale deed of the Baroda properties along with Krishnabai and N. K. Apte. Forced to admit his signature he maintained that the contents represented something he did not know. Admittedly the Baroda property was sold and the document he avoids admitting is the sale deed of that transaction. Ex. D3 is the return under the Estate Duty Act. Like many other falsehoods R.K. Apte denied his signature on this document. Yet the fact of his handling the estate duty matter is proved by N. K. Apte. Cornered from all sides, R. K. Apte finally asserts that the entire remainder of the F.S.I. belongs to him for N. K. Apte has consumed his share thereof by constructing the upper floors, which proves the claim of N. K. Apte that the upper floors were built by him with his money. To that effect is the admission of Krishnabai and R. K. Apte in Ex. P1. The story about coercion and undue influence is refuted by the admissions to the contrary given by R. K. Apte. Viraj has no personal knowledge and all that his deposition establishes, is, the craftiness that he in common with his father has, thus belying the pretence of having been duped by N. K. Apte.
9. It will be necessary to finish with the 4th, 5th and 4A issues before going to the two preceding them. N. K. Apte has set up the plea of a severance of status having taken place as far back as 1952. The position in law may sound but is not confusing if the following is kept in mind : Partition is the severance of joint status and that can be done by communication of an intent to separate by a member of the Hindu undivided family. This is not to be confused with a de facto division of property and allotment of shares. If the former be established, the joint family stands disrupted though no separation of the estate by metes and bounds may have taken place. Continuance of the joint family has then to be proved by he who alleges the same. But a partition between coparaceners may be partial in respect of property. In such a case the member of the HUF make a division and severance of status in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest of the properties as a joint and undivided family. In the event of a partial separation being admitted or proved, it is for the party pleading continuance of jointness in respect of the remaining property to so establish. This being the position in law, I now turn to a scrutiny of the facts.
10. The Baroda properties were self-acquisitions of Krishnarao as is recited in Ex. D1. After his demise it came to his widow and sons. They sold the same and with it acquired a plot at Chembur and built the ground floor. The plot was purchased in Krishnabai's name and she continued the named owner until her death. Even now her name continues in the municipal records. As to the shares and fixed deposits, these came to be in the names of Krishnabai teaming up with one of the sons. Items I to III (see Ex. D to 1979 suit) stood in the joint names of Krishnabai and R. K. Apte, while for the IVth item, the mother's name stood along with that of N. K. Apte. Prima facie this is proof of a severance in status. It is contended that this coupled with separation in mess and residence suffices to prove the partition set up by N. K. Apte. R. K. Apte to counter this has taken to the other extreme viz. that N. K. Apte and he were joint in mess, residence and medical practice till as late as 1968. His lack of veracity has been commented upon and all that need be further pointed out is his greed to retain the movables standing in the joint names of himself and Krishnabai as also the room which he got under Ex. P1. This further disproves his story about succumbing to any pressure or undue influence. But R. K. Apte's proneness to falsehoods apart, does the mere separation in mess, residence and holding of movables in different names establish a severance in status? The question has to be answered in the negative and this for compelling reasons. Though the Baroda properties were sold by all the three, the new property was acquired only in the name of the mother. Sentiment may have played a part in this, but also not excludible is the strong tendency towards unity in persons placed as the widow and two sons were, after the death of Krishnarao. He passed away in 1951. N. K. Apte was in Bombay since 1939 and started earning after doing his M.S. in 1949. R. K. Apte came to Bombay for education in 1947. After Krishnarao's death there was hardly any reason for the family to stay on at Baroda. Therefore they sold the property in Baroda and came over to Bombay. Here the trio could have purchased the plot in the names of the three of them. After all Ex.D1 showed the three to be joint vendors. But a conscious decision to preserve the jointness was taken. Despite N. K. Apte and R. K. Apte moving in different worlds -- professionally speaking -- they maintained the jointness in estate well after the first named person went to reside out of Chembur in 1968. The cementing influence appears to have been the mother during whose lifetime neither brother dared to express a desire for partitioning the house property.
11. The problem now arising is whether Viraj is entitled to sue during the lifetime of his father. Father and son both claim that the latter had the former's assent to sue for partition. R. K. Apte has in fact admitted that he instigated the suit by Viraj. That is not difficult to believe having regard to the insatiable greed of the gentleman. Having negatived the plea of a severance of status in 1952 and the only difficulty about father's consent not surviving, it has to be held that R. K. Apte's being alive constitutes no impediment in the path of Viraj to sue for partition. That apart, the authority (1892) ILR 16 Bom 29 (FB) requiring the father's consent to a suit for partition by a son, is no longer good law. Madhav Reddy, C.J. has so held in the case of Narayan v. Arjun, AIR 1986 Bom 122 on the basis of . Issue A4 does not survive in view of the subsequent joinder of Viraj's mother.
12. The crucial question in the suits is as to the effect of Ex. P1. According to Viraj the same does not enlarge the right of N. K. Apte and Saroj Apte nor whittle down that which vests in him and his parents. The submission is that accretions to joint family property, even if the result of one member's enterprise enure to the benefit of the joint family. When therefore a disclaimer or interest in the accretion is made, it must be in the manner provided for alienations i.e. by a registered instrument and if intending to bind the non-alienating coparceners, for reasons justifiable as being for legal necessity or benefit to the estate. Permitting the construction of upper storey upon an existing structure with a commitment that some owners of the latter will not claim an interest in the former, amounts to an alienation or relinquishment. Such is the real nature of the transaction embodied in Ex. P1. The value of the property parted with is certainly more than Rs. 100/-. The first question is whether Ex. P1 required registration. Counsel for the N. K. Apte group says that Ex. P1 is the record of past events and a family arrangement. It was not therefore compulsorily registrable. A family arrangement per se is not exempt from registration. The caption given to a document by parties is not decisive of what it amounts to. Its contents have to be read as a whole to determine the true nature of the transaction it incorporates.
13. A careful examination of Ex. P1 reveals the following to be the vital features thereof :--
1. The document is described to be a deed of family settlement.
2. N. K. Apte between 1953 to 1956 had spent for the construction on the first floor and incurred further expenses from time to time on renovation and additional construction inclusive of a room on the terrace and garage.
3. Admission by Krishnabai and R. K. Apte that N. K. Apte is owner of upper floors and garage by virtue of his having got constructed the same.
4. Admission by Krishnabai and R. K. Apte that Saroj Apte has become owner of upper floors because of an oral gift in her favour by N. K. Apte and that she has a right to let it out to whom she wants.
The other two writings are of 5-3-1958 and 15-7-1960. At the best these are admissions by Krishnabai and will not bind R. K. Apte. What can be deduced therefrom is the proved, if not, admitted fact that the upper floors were due to the expense and efforts of N. K. Apte alone. This was acknowledging a past event. But the acknowledgement of the sole owner-ship of N. K. Apte and of Saroj Apte as his donee was not a recognition of a past event. That was a recognition made for the first time.
The occasion was the impending move of N. K. Apte to shift his residence from Chembur to Warden Road. Describing the document as a family arrangement was a misnomer. In reality it was an acknowledgement that N. K. Apte was the sole owner of the upper floors and that his mother and brother would not question the leasing out thereof by Saroj Apte. Next, the document further recited that in lieu of N. K. Apte surrendering one room on the ground floor to R. K. Apte, he was exonerated from the liability to pay Rs. 50/- per month to his mother. This clause perhaps would partake of the nature of a family arrangement. But the clauses recording the ownership of N. K. Apte and disclaiming the rights of the monther and R. K. Apte relate to the creation and extinction of a right. Ex. P1 to that extent is not a record of a past transaction. The document was prepared for use as a document of title. To paraphrase the'words of the decision in Tek Bahadur v. Debi Singh, , the purpose behind Ex. P1 was to have a document of title declaring for the future what rights and what properties, the parties did or did not possess. Ex. P1 required registration and not being registered does not strip R. K. Apte of the interest that he has in the upper floors which are an accretion enuring to the benefit of both the branches. Counsel for N. K. Apte relies on Kashinath DAS v. Pravash Chandra, in support of the contention that R. K. Apte having acquiesced in the construction of the upper floors is debarred from questioning his client's exclusive right thereto. The decision relied upon seems to support the stand taken. But, and I say so with utmost respect to the Judges, no reasons have been given in support of the view. The better view seems to be that taken by Wadsworth, J. in the case reported in AIR 1940 Mad 626. There, an addition with the separate funds of a coparcener to the ancestral house was treated as an accretion enuring to the benefit of the family. The reason given was that the ancestral house supplied to the addition both its site and its foundation and thus rendered the latter liable for partition. The result is that the upper floors are not excludable from the hotchpot.
14. R. K. Apte's attempt to exclude N. K. Apte from the cash and shares is in keeping with character i.e. to retain what he has and snatch whatever he can from N. K. Apte. However as part of the ancestral estate it will be liable for partition. Until a partition by metes and bounds takes place, R. K. Apte and his branch should not be allowed any share in the income from the upper floors. This is because it is R. K. Apte who has gone back on a solem commitment given in Ex. P1 and has refused to accept any of the eminently reasonable options given to him in Ex. P9. Incidentally an additional reason is that he has taken a benefit under Ex. P1 by getting possession of one room on the ground floor. Having regard to the equities it will be best to leave parties to bear their own costs. Hence the order.
ORDER Declaration that N. K. Apte and R. K. Apte each have a one-half share in the suit property listed in Ex.D to the plaint in the 1976 suit. Further declared that Viraj has a one-third interest in the share allocable to R. K. Apte. Saroj Apte and Suman Apte have not sought separation of their shares in the property of their spouses. The daughters of N. K. Apte and R. K. Apte do not have any interest in the suit properties as of today. Viraj and R. K. Apte will not be eligible to any share in the income accruing from the upper floors until the partition is finalised.
A Commissioner to be appointed to devise a scheme for partitioning the property in the suits. Costs up to this stage as incurred.
Preliminary decrees for partition and separate possession be formulated -- to serve as such in both the suits.
15. Order accordingly.