Kanwal Singh And Ors. vs Bishan Singh
1992 Latest Caselaw 346 Del

JUDGMENT

Usha Mehra, J.

(1) This order will dispose of an application filed by plaintiffs 2 and 3 seeking the relief of maintenance Co enable them to meet their day to day expenses and also to meet the education expenses of the plaintiff No. 3 who is a student. In order to appreciate their contents, in short the case of the.: plaintiff is that plaintiff No. 2 is the widow of Hanumant Singh, predeceased son of Shri Har Kishan and plaintiff No. 3, Master Satish is the minor son of Late Shri Hanumant Singh. Late Har Kishan Singh who was the father-in-law of plaintiff No. 2 and grand father of plaintiff No. 3, inherited an ancestral land, which was acquired-by the Government of India under the Land Acquisition Act. He received compensation because of the ancestral lands being acquired by the Government. With the amount of that compensation, Har Kishan purchased certain lands in village Sahibabad, Daulat Pur and in Delhi Estate Jointly in his name and in the name of Smt. Sarwan Kaur wife of one his sons Shri Kartar Siagh. Certain lands were sold by late Shri Harkishan. The entire sale proceeds which came in the hands of Shri Har Kishan was ancestral property. Late Har Kishan had also some ancestral lands besides four ancestral puce houses in Pitam Pura and a plot bearing Khasra No. 460/1, measuring about 2 bighas along with boundary walls with a covered passage and vacant shops on the back side of the said passage. On his death he left certain moveable properties which are in possession of Shri Kartar Singh, defendant No. 2 herein. It is further the case of the plaintiffs that before the death of Har Kishan, There was a notional partition of the ancestral property and each co-perceiver got 1/6th share of the moveable properties m the hands of Har Kishaii. Plaintiffs No.2 and 3 being the legal heirs of Shri Hanumant Singh, have asked for the partition after the death of Har Kishan but the defendants are neither giving possession of the property nor giving any share out of the same though defendants themselves are enjoying the ancestral property and the proceeds thereof, thereby depriving the plaintiffs the benefit of the same.

(2) It is in this background that this application has been filed by plaintiff No. 2 and 3, the legal heirs of late Shri Hanumant Singh, (pre deceased son of Late Har Kishan) on the ground that they have no independent source of income and their livelihood also depends on this ancestral property where from the defendants are receiving rents but are not sharing with the plaintiffs. Therefore, they claimed that Rs. 10,000.00 be paid to the plaintiffs till the appointment of Receiver and they should also pay Rs. 5,000.00 per month to plaintiffs 2 and 3 to enable them to meet their day to day expenses. This application has been contested by defendant No. 2 inter alia on the grounds that the plaintiffs have no share out of the suit properties. Therefore, they are not entitled to receive any amount nor the plaintiffs have given any specific mode of income which the defendants are earning and Realizing out of the suit property. Even otherwise, if the plaintiffs succeeds the suit, they and defendants 7 to Ii would get only one share in equal shares. And if this application, is maintainable, it is only against defendants 7 to Ii who are liable and bound to pay the in term relief to the applicants. No other defendant has filed the reply to this application of the plaintiffs,

(3) On the day the arguments were beared, the plaintiff filed an affidavit of Dr. Kanwal Singh, son of late Sh. Har Kishan (plaintiff No.1 herein) who indicated that there are about 17 shops which have been let out and the rents which is being collected ranges from Rs. l,500.00 p.m. to 2.000.00 per month. By this affidavit, he has stated that two shops are given by Kartar Singh, defendant No. 2, four by Vijender Singh, defendant No 7, two by Bishan Singh, defendant No. 1 and five by Jaswant Singh through his wife Smt. Dhanpati, defendant No. 3. Besides these premises, defendant No. 3 has also let out various portions of the house to different tangents for residential purposes and thus the defendants are collecting minimum rent of Rs. 5,000.00 per month jointly and severally.

(4) I have beared Mr. Gopal Narain Aggarwal, counsel for the plaintiff and Mr. Mahesh Chandra, counsel for defendant No. 2 and M.N.S.Negi for defendants 3 to 6 and perused the record. The defendants have taken the plea that this Court has no jurisdiction to grant the relief and if the relief is to be granted, it can be against defendants 7 to 11 and not against the other defendants. According to them, there is no ancestral property, and therefore, the relief sought by he plaintiff in the main suit is not maintainable. It is, however, not been disputed that there was a property in the hand of late Har Kishan which was a ancestral property. It is also not disputed that plaintiff No.2 is a widow of late Hanumant Singh, pre deceased son of late Shri Har Kishan. It is also not disputed that plaintiff No.3 is minor. However, defendant No.2 had contended that plaintiff No.3 is 17 years old. But the fact remains that he is a minor and has not attained the age of majority. So far as the assertion of plaintiffs that plaintiff No.3 is a student has also not been denied. Therefore, the short point for consideration, in view of these facts is whether the plaintiffs are entitled to get a share of the income which is being derived by the defendants from the properties in question? An affidavit was Filed by plaintiff No.1 on 4th March, 1992 indicating as to how much rent is being derived from the premises let out for commercial purposes and the premises let out for residential purposes. So far as the needs of plaintiffs 2 and 3 are concerned, those have not been denied nor it is .denied that they have no independent source of income.

(5) Their needs being genuine, the question for consideration which arises before this Court is whether any direction can be given to the defendants to pay the interim relief to these plaintiffs from rent derived by them? As regards the rent received by the defendants, it is alleged to be from a joint these property. The plaintiffs have asserted that these family property. The plaintiffs have asserted that these properties were purchased by late Harkishan by......the ancestral properties. Therefore, the present properties also become ancestral properties in which each of the co-parcener has a share. The 'Karta', in this case, late Har Kishan could not bequeath these properties by executing a 'Will'. It is also asserted that till such time the accounts are settled and the property is partitioned, the plaintiffs 2 and 3 should not be made to suffer an irreparable injury because of their Financial hardships and they should not be made destitutes. I see no reason why these plaintiffs should not be given some relief particularly when they have no source of income to meet their daily requirements.

(6) They can be given some relief from the rent being collected by the defendants. This will be without prejudice to the parties rights. The defendant No.2 has admitted in no uncertain words that the plaintiffs can claim the interim relief but only from defendants 7 to II. This contention, to my mind, has no force because all the defendants are earning from this property in which the plaintiffs are claiming shares and I see no reason why all the defendants should not be directed to give the interim relief to these two plaintiffs. Moreover at the time of Final settlement of accounts, if it as decided that only defendants should not be directed to give the interim relief to these two plaintiffs. Moreover at the time of Final settlement of accounts, if it is decided that only defendants 7 to 11 are liable, then the plaintiffs can be asked to refund the amount to the other defendants.

(7) So far as the question of granting interim maintenance is concerned, this court has the inherent jurisdiction. In this regard I am supported by the decision of the Allahabad High Court in the case of Asa Nand and others Vs. Baldev Raj and others . It was held that under the Hindu Law, there is a presumption that a joint family continues to be joint so long as the status of the same has not been brought to an end by a definite and unequivocal expression of intention of the members constituting the same. It was further observed that a separated member or a member, who has been deprived of the usufruct of the joint family fund may not claim any amount from the joint family fund for his maintenance, he would still be entitled to get a share of his income wherever such a need has been established and the Court feels that an injury is likely to happen to such a member in case a provision for giving admitted amount of his share was not made during the pendency of he partition suit. in such a contangency, the application for interim maintenance can be treated as one under the inherent powers and in appropriate cases relief may be granted. Same view was taken by Madhya Pradesh High Court in the case of Hakimuddin Vs. Zohrabai and others reported in 11(1990) Divorce and Matrimonial Cases page 72 where it was held that in a suit for partition, an order for maintenance can certainly be made against the party enjoying the property in dispute. Therefore, the contention of the counsel for the defendants that this court has no jurisdiction has no force. But this Court has to see is that the property in dispute is a joint family property and that there is a need of the person claiming the same. So far as the need is concerned, there is no dispute. So far as the status of property is concerned. It is the case of the defendants that property has come into their hand on account of the will executed by late Har Kishan. Mr. Aggarwal contended that the ancestral properly in the hand of Har Kishan was as 'Karta' of the plaintiffs and the defendants. Late Har Kishan admitted before the Income Tax Department that the land was ancestral property. In a suit filed by the present plaintiffs which is now pending before Sub Judge, Delhi, the defendants filed written statement admitting therein that it was an ancestral property in the hand of late Harkishan which admission the defendants are now trying to withdraw. Therefore, the ancestral nature of the property is not disputed. Coupled with the admission of the deceased Har Kishan before the Income Tax Department an irresistable conclusion should be drawn that property was purchased by late Har Kishan with ancestral funds and that this property an ancestral property in the hand of deceased Harkishan. The nature of the land being urban has not been denied by either of the defendants, therefore, under Section I, Sub Section 2 of the Delhi Land Reforms Act, 1954 read with Section 3, Sub Section 12 and 23, late Harkishan could not execute a Will of this property. By the notification dated 23rd April, 1992, the entire Pitam Pura was declared urbanised. On 10th October, 1983, Har Kishan died. Therefore, the Will executed on 10th October, 1980 on an un-urbanised area is not a valid 'Will' in the eye of law nor it can be operated urbanised. Similarly, in respect of ancestral property Bhumidar has no right to bequeath the whole of it by will. He could only will out his share in the property. Since it was ancestral property in the hand of Har Kishan, he was as best a 'Karta' even though the land was in his name, it was in the capacity of 'Karta' holding on behalf of the co-parceners. The co-sharer is on behalf of all unless ouster established and under Section 48 of the Delhi Land Reforms Act, Bhumidar can bequeath only his holding. He cannot dispose off by will the share of his sons coparceners in the joint family holding, as held by our own High Court in the case of Chander Bhan Vs. Harnath Singh and others reported in 20 (1981) Delhi Law Times (SN) page 32. Therefore, Mr. Aggarwal contended that the defense set up by the defendants that they acquired ancestral property on account of the Will made by late Harkishan cannot deprive the plaintiffs their right in the property. That the Will is not operative nor the nature of the property being ancestoral can be denied by the defendants. They have already admitted this fact in the written statement filed by them in the suit .Filed by the plaintiffs before the Sub Judge. Since the defendants are Realizing the rent to the tune of Rs. 50,000.00 per month, the plaintiffs 2 and 3's needs already .established, they cannot be deprived of their share in the property by the defendants. They should not be made to suffer and a reasonable maintenance should be given to them to meet their day to day requirements. Mr. Mahesh Chandra, counsel for defendants, conceded that So far as the jurisdiction to grant the maintenance, but since it is not an ancestral property nor a joint properly, therefore, the plaintiffs are entitled to any share. The authorities cited by the plaintiff are of no help to the plaintiffs because those were on different facts. As regards the urbanisation of the land, that will not be of any consequences. Section 150 of the Delhi Land Reforms Act, 1950, supersedes the Gaon Sabha. But So far as Bhimidars are concerned, this Act still applies. Merely because the lands have become urbanised is no reason to deny the owner his power to bequeath the property. So far as the question of realisation of rent is concerned, defendant No. 2 is Realizing the same as owner and plaintiffs have no share in the same. For the decision of this application, I need not go into the merits and demerits of the Will alleged to have been executed by late Harkishan, nor I am giving any finding as to whether the defendants are trying to wriggle out from the admissions already made before the Sub Judge to suit filed by the plaintiffs. But I am prima facia of the view that since the defendants are enjoying and earning the rent from the property which has fallen to them and in which the plaintiffs are also alleging their share, they should be given some interim relief for meeting their day to day needs.

(8) Taking in to consideration the needs of defendants 2 and 3, widow and a minor child who is studing, I think is will be in the interest of Justice, if plaintiffs 2 and 3 are allowed a sum of Rs.l500.00 per month from the rent recovered by the defendants from the date of this order. Since the property in dispute, is being enjoyed by all the defendants, and nor merely by defendants 7 to Ii, there is no impediment for not giving direction to all the defendants to pay Rs. 1500.00 per month jointly to plaintiffs 2 and 3 from the rent they are collecting as indicated in the affidavit of the plaintiffs Filed on 4th March, 1992. Ordered accordingly.