Sawai Bhawani Singh vs Jagat Sing And Ors.
1995 Latest Caselaw 944 Del

JUDGMENT

M. Jagannadha Rao, C. J.

(1) This is an appeal preferred by the 1st defendant in Suit No. 870186 against the order of the learned Single Judge dated 16-2-1995 dismissing the application filed by the appellant seeking rejection of the plaint under Order 7, Rule 11.CPC.

(2) The 1st respondent herein, Maharaj Jagat Singh, who is the plaintiff and the appellant Lt. Col. Sawai Bhawani Singh ( 1st; defendant) and two others are brothers and are the sons of late Maharaj Sawai Man Singh, the former ruler of Jaipur in Rajasthan. The said Maharaj Sawai Man Singh died on 24-6-1970 leaving behind him his 2 widows, 4 sons (including the appellant and the 1st respondent) I daughter and two grand children. The 1st respondent herein has filed a suit for partition against the appellant and others in respect of plaint Schedule properties. He also prayed for relief of accounts the appellant 1st defendant in respect of various properties and cancellation of power of attorney dated 29-8-1985 executed by the appellant in favor of his wife the 8th defendant and for other reliefs the suit was filed on 24-5-1986 and is pending in this Court.

(3) In the plaint filed by the 1st respondent it was stated that the properties originally belonged to the plaintiff's grandfather- Maharaj Madho Singh, who adopted the plaintiffs father Sawai Man Singh in 1921, that after 1947 when India became independent the paramountcy lapsed, the rule of Sawai Man Singh came to an end, the State of Jaipur acceded to India by an instrument of accession and, thereafter, merged with the United State of Rajasthan on 30-3-1947 and a covenant was executed by Maharaj with the Government of India on 6-2-1949. The plaint avers that the said Maharaj Sawai Man Singh, prior to accession, was enjoying the properties as absolute owner but on manger the properties of the Jaipur estate were divided into two categories being State properties and private properties. After merger, the private properties were being held in possession by said Maharaj Sawai Man Singh as Hup properties Along with his 2 Maharanis, 4 sons, I daughter and 2 grand children. On the demise of said Maharaj on 24-6-1970, the appellant /1st defendant became the karta. The properties were assessed under the Income Tax and Wealth Tax statutes in the status of Huf properties for all intents and purposes- Even after the death of Sawai Man Singh, the appellant] 1st defendant was in possession on behalf of the HUB' and was showing the said properties to the Income Tax and Wealth Tax authorities as Huf properties for all intents and purposes. The 1st defendant also executed a power of attorney dated 29-8-1985 in favor of the 8th defendant, his wife. The 1st defendant was mismanaging the properties and unauthorisedly entering into agreements of sale and not accounting for the income. On these broad allegations, the suit was filed for partition, accounting and other incidental reliefs. The appellant) 1st defendant is contesting the salt.

(4) There was an application for appointment of a Receiver file in this Court earlier which was dismissed, and the dismissal of the application was confirmed in appeal in FAO(OS) 55190. Against the said order in the appeal refusing to appoint a Receiver, an appeal was preferred by the respondent plaintiff to the Supreme Court in Civil Appeal No. 4492192 and the Supreme Court by its Order dated 20-10-1992 appointed an Administrator to administer the properties on a remuneration of Rs. 20,000 per month. We are informed that subsequently another person has not been appointed on a remuneration of Rs. 5,000 per month.

(5) During the pendency of the present suit, the Supreme Court has recently rendered judgment in connection with the Nabha princely State in Maharaja Pratap Singh's case in C.A. 5857193 dated 17-8-1993 1994 (1) Suppl. 734] (1) holding that even on merger of the princely State with the State of Punjab the private properties of the ruler continued to be private properties governed by the principle of primogeniture. Relying on the said judgment of 1-993, the present application has been filed by the 1st defendant under Order 7, Rule 11 contending that the properties held by late Maharaj Sawai Man Singh after the merger till his death are his exclusive and private properties and his legal heirs have no legal right or title during his life time or after his death and that under the principle of primogeniture they continue even after 1947-48 to be separate properties and, therefore, they are not liable for partition. The appellant contends in the I.A. that the basis of the plaint is that on merger in 1947 the properties have become joint family properties and that this is wrong in view of the Pratap Singh's case (supra). It is said that there is no alternative case set up in the plaint and the plaint must therefore, be rejected on the ground that there is no cause of action.

(6) This application has been resisted by the plaintiff, who contends that the. plaint cannot be rejected on the ground of absence of cause of action, that the plaint contains sufficient allegations to show that the 1st defendant by his conduct has treated the properties as joint family properties and that the 1st defendant has filed Income Tax, Wealth Tax and Estate Duty returns treating the properties as joint family properties and that 1st defendant-appellant is estopped from contending to the contrary. The' plaintiff has referred to various other averments in the plaint to contend that the plaint discloses sufficient cause of action.

(7) On the basis of the averments made in the pleadings and In the I.A. the learned Single Judge by an elaborate Judgment, has come to the conclusion that the plaint cannot be rejected under Order 7, Rule 11 Civil Procedure Code . It is against this order that the present appeal is preferred by the 1st defendant.

(8) The point that arises for consideration in the appeal is whether the order passed by the learned Single Judge rejecting the application filed by the appellant] 1st defendant under Order 7, Rule 11 Cpc is correct ?

(9) It is argued for respondent-plaintiff with reference to para 9 of the plaint and that there are allegations that the appellant/first defendant has been the Karta of the Huf and he has been showing he suit properties in the Income Tax, Wealth Tax and Estate Duty returns as Huf properties and that the properties have been assessed is Huf properties. The suit properties are for all intents and purposes Huf properties. Reference is made to para 16 (a) of the plaint wherein it has been alleged that the appellant has contended in the Income "lax, Wealth Tax and Estate Duty proceedings that the properties have devolved on him on Karta of the Huf being ancestral in nature and that the said contention has been accepted by the Income Tax Appellate Tribunal on 24-12-1979 and that, therefore, the appellant is estopped from contending that the properties are separate properties.

(10) As the dispute turns very much upon allegations in the plaint, it is necessary to extract the relevant portions of the plaint. In paragraph 8 of the plaint it is stated as follows :-- "That the said private properties, as enshrined in the said Covenant, formed the corpus of Hindu Undivided Family (hereinafter referred to as suit properties). That after the merger of the Jaipur State. Maharaja Man Singh Ji held the private properties which formed the corpus of Hindu Undivided Family for and on behalf of the members of the said family as per the Hindu law. The said H.U.F. was and is being governed by the Mitakshara School of Hindu Law. The members of the said Hindu Undivided Family consisted of the Kirta two Maharani Sahibas. namely Kishore Kumari and Gayatri Devi (wives of the Karta), four sons, one daughter and two grand children. The said Karta was in possession of the entire suit properties for and on behalf of all the members of the said Hindu Undivided Family and each member including the Plaintiff was in constructive and physical possession thereof. ... .That the suit properties were assessed under the Income Tax and Wealth Tax statutes in the status of .Hindu Undivided Family properties. The suit properties were Huf properties for all intent and purpose. . . ."

Relevant allegations in paragraph 9 are as under :-    ..Lt. Col. Bhawani Singhji being the eldest son of late Maharaja ascended to the throne (gaddi) of Jaipur State. He also became the Karta of the said Hindu Undivided Family properties."  

In para 10 of the plaint it is stated that--    "....The Defendant No. 1 as Katra of the said Huf has been showing the suit properties with the Income Tax and Wealth Tax authorities in the status of Huf properties and the same have been assessed likewise. The suit properties for. all intent and purpose are Hindu Undivided Family property."  

In para 16 of the plaint it is stated :-    ".. .Defendant No. 1 is estopped in law from denying the existence of HUP. . ."  

In para 16(a) of the plaint it is stated- "THAT the Defendant No. I in his Estate Duty, Income-tax and Wealth-tax proceedings had contended that all properties devolved on him as Karta of Huf being of ancestral nature. Accordingly, the authorities assessed on the basis of the properties being Huf properties, and the stand of the assessee was accepted by the income-tax Appellate Tribunal on 24-12-1979. It is submitted that the Defendant No. 1 is estopped from now contending that, as he has sought to do, all properties belonged to him on the basis of rule of primogeniture".

(11) Counsel have also referred to the written submissions filed before the learned Single Judge. We shall refer to them also. The respondent/plaintiff has stated in the written submissions as follows : "...After the death of Maharaja Man Singh. Lt. Col Bhawani Singh, the applicant and Defendant No. 1 in the suit took a stand that the late ruler was in error in treating the private properties belonging to the erstwhile ruling family of Jaipur as "individual" properties in filing the Income-tax and Wealth-tax returns on that basis in the "Individual" status. Thereafter he revised all the returns filed by the late ruler which were pending for assessment, and filed fresh returns contending that all the personal properties of the late ruler belonged to the Hindu Undivided Family. He also revised the Estate Duty return on the same lines thereby saving- 5/6th of the estate from attractions Estate Duty @ 85 per cent plus interest, etc."

(12) In other words, the submission is that appellant deliberately. revised the returns showing the properties as joint family properties, so that relief in various taxes including estate duty was obtained and hence the properties are to be treated as HUF.

(13) In reply to the same. the appellants written submission was that- ". . . that he took a stand that the late Man Singh was in error in treating the properties as individual properties since in law. the properties ought to have been treated as Huf properties. . . . In fact, merely by Defendant No. 1 Sawai Bhawani Singh having wrongly declared the properties as Huf properties, there can be no question of the plaintiff having altered his position to his detriment on that account. . . . . . . In the absence of any such pleading of having been misled to act to his detriment on account of this declaration by Sawai Bhawani Singh before the Tax authorities that the properties were Huf, no question of estoppel Defendant No. 1 can arise." . . . It is clear from the written submissions of the plaintiff himself that Sawai Bhawani Singh made the declaration of the property as Huf on the basis of the legal advice that even- the late Sawai Man Singh was in error in treating these properties as his individual properties. This, in fact, was the correct petition as is clear from the fact that Sawai Bhawani Singh revised the Income Tax returns of even the late Sawai Man- Singh by changing the declaration, from individual property to Huf property. . . . The returns were merely revised on the basis of legal advice which it is now clear from the Supreme Court judgment, was incorrect.

This written submission of the appellant tries to explain away the filing of the returns as Huf as being based on mistake or wrong legal advice.

(14) It is well settled that for purposes of Order 7 Rule 11 Civil Procedure Code and for finding out whether the plaintiff has made out a cause of action, the Court must refer to the plaint and not to the defense. The Court is not to look into any explanation as to mistake or wrong legal advice' that is taken in the written statement. It has been held that the plea of a defendant under Order 7, Rule 11 Civil Procedure Code is essentially in the nature of a demurrer and the defendant must be taken to admit for the sake of argument that the allegations in the plaint are correct in model forma (in manner and form) Kanhava Lal vs. National Bank of India Ltd. (1913) Ilr Vol. 49. Cal. 598 (P.C.X2). Courts have indeed taken the view that for purpose of proving that the plaint contains allegations as to cause of action, it is even permissible to look into any document referred to in the plaint such as tax assessment proceedings in this case). (See Bhagwan Dass vs. Goswami Brijesh Kumarji and others .

(15) Under Hindu Law, Wending of separate property into joint family property, has two different aspects. One aspect is where there is already a corpus of joint family property and a coparcener throws his separate property into the said corpus with an intention to give up his exclusive right thereto and to treat it also as joint family property. The other aspect is where, there is no such joint family corpus, but he impresses his separate property by his conduct with joint family property character with an intention to give up his separate rights therein and with a view to treat it as joint family property, the question is whether there are sufficient pleadings before us to bring the case into the latter category?

(16) The effect of filing tax returns has been subject matter of several decisions by various Courts. It has been held by a Division Bench of the Andhra Pradesh High Court in Mohan Rao vs. Satyanarayana, and in Controller of Estate Duty vs. Late Dandamudi Venkavya (1979 Tax L.R. 318 (AP)(5), and by the Madras High Court in Commissioner of Income Tax . vs. Siva Prakash Mudaliar(6) and by Gujarat High Court in Commissioner of Income Tax . vs. Mahendra Kumar that "a declaration filed before the income-tax or estate duty authorities showing self-acquired properties as joint family properties will amount to impressing the separate property with Joint family character. It has also been held in the above rulings that subsequent repudiation of the statement in the return or the act of filing fresh returns in his individual capacity cannot reconvert the character of the property from joint family property to separate property (See Mayne's Hindu Law, 13th Edition, 1993 p. 572). Once the separate property becomes joint family property, the coparcener cannot take it out" Hanumantha Rao vs C.W.T. (Tirumalayappa vs. Shanmughanatha Ilr 1969 (3) Madras 296(9), (Mayne's Hindu Law, 13th Ad. p. 573) (10). Recently the Supreme Court held in Bhagawant P. Sulakhe vs. Digambar Gopal Sulakhe that "BY a unilateral act, it is not open to any member of the joint family to convert any joint family property into his personal property."

(17) This is one aspect of estoppel arising by treatment or conduct of the coparcener converting the nature of the property from separate property to Huf and such conversion becoming irreversible.

(18) There is yet another aspect of estoppel. It can arise because of statements made for the purpose of obtaining benefit in tax. It benefit is obtained in tax proceedings, it can straightaway create estoppel because of public policy. This is clear from the Judgment of Rajagopala Ayyangar, J. in Smt. Surasibalini Debi Vs. Phanindra Mohan. Majumdar following Emergy Vs. Emery (1959) Ch. 410) (3) and other cases. The contenton of the plaintiff before the taxation authorities and in particular, the estate duty authorities, was that 116 share of his father alone was to suffer estate duty. This is clear from the written submissions filed by the parties.

(19) Thus, the allegations of estoppel in the plaint give rise to the above factual and legal aspects and as to how far these are proved is a matter to be considered in the suit. We shall now refer to certain contentions for the appellant.

(20) Learned counsel for the appellant relied upon Dhiyan Singh Vs. Jugal Kishore for contending that for the principle of estoppel to apply, there must first be representation by appellant and then the respondent must have acted upon the same to his detriment. It is said there is no such plea in the plant. There are at least three answers to this submission. We have already referred to various situations in which a plea of estoppel can raise viz. an admission that property is joint property is initially binding though it can be explained; if the property is already impressed with joint family character, it cannot, by any unilateral act, be restored to its position as separate property; further, if tax benefits have been received or were intended to be received by making certain statements in writing, estoppel can arise as stated above. Recent changes in the Law of Estoppel has been stated by the Supreme Court in Delhi Cloth & General Mills Ltd. Vs. Union of India . The Supreme Court observed that all that is now required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representations made to him. It means the party has changed or altered the position by relying on. the assurance or the representation. It is not necessary to prove further any damages, detriment or prejudice to the party asserting the estoppel. The theory of 'detriment' is replaced by the theory of fairness, justice and equity. This principle laid down by Lord Denting in Central Newbury Car Auctions Ltd., Vs. Unity Finance Ltd. (16) was followed earlier in Motilal Padmpat Sugar Mills Vs. State of U.P. and in Union of India vs. Godfrey Phillips (India) Ltd. (AIR 1986 Sc 826) (18).

(21) It is then argued for the appellant that there is no specific averment in the plaint that separate property has been voluntarily treated as joint family property with an intention to give up exclusive rights. Relying upon G. .Narayana Raju Vs. G. Chamaraju and others (AIR 1968 S.C. 127 (6) (19). Lakkireddy Chirma Venkata Reddi and others Vs. Lakidreddi Lakshmama (AIR 1963 S.C. 160U2U), and K.V. Narayanan Vs. K. V. Ranganadnan and others , it is contended that such intention has to be clearly established. In the present case, having regard to the averments in the plaint relating to the filing of income tax, wealth-tax and estate duty returns showing them as joint family properties-and in fact by way of substituting earlier returns already filed treating the properties as separate properties'-it must,, in our opinion, be accepted that the plaintiff's case is that there is such unequivocal conduct on the part of the appellant as brings the cage within the principles of Hindu Law and estoppel as laid down in the rulings referred to by us. Whether the plea will be established by plaintiff or not is a matter that arises in the suit.

(22) Yet another contention is raised by the appellant's counsel relying upon Damodar Narayan Chaudhury and others vs. S.A. Miller and others (AIR 1922 P.C. 349) (22) that it is not permissible even to amend the plaint under Order 6 Rule 17 Civil Procedure Code for introducing a cause of action into the plaint. This submission, in our opinion, is again not correct. In our view the above ruling is not an authority for that proposition. That was case of complete substitution of one cause of action by a different cause of action and is clearly distinguishable. On the other hand, it has been held that if the original plaint does not contain- any cause of action, the same can be pleaded by amendment. See Raj Kumar Roy Vs. Mritunjoy Dass , Gagan Mal Vs. Hongkong and Shanghai Banking Corporation , Amar Nath Vs. Union of India and another (AIR 1979 J & K 87) (.25) and Hari Bhagwan Sharma and others Vs. Badri Bhagat Jhandewalan Temple Society and others (1985) 27 Delhi Law Times 68(26). Curiously, learned counsel argued that the present plaint has to be rejected and" the plaintiff can file a fresh suit where he can plead fresh facts. It is well-settled that avoidance of multiplicity of suite is an important consideration- for allowing an amendment. Be that as it may, we are no" here concerned with amendment of plaint under Order 6, Rule 17 Civil Procedure Code . We are concerned with the question whether the allegations already made in the plaint are sufficient.

(23) We shall now refer to certain submissions made by the respondent's counsel. Learned counsel relied upon Shiv Bhagwan Moti Ram Saraoji Vs. Onkarmal Ishar Dass and others to say that, in a suit for partition- it is sufficient to plead that there is a joint family, the suit properties are joint family properties and the plaintiff is a coparcener. It was so stated in that ruling. On the facts of the present case, the plain" contains these allegations and in addition there is also a plea of estoppel based Ob conduct of the appellant.

(24) Learned counsel for the respondent" has also relied upon the Judgment of the Supreme Court, in this very case, in the Receiver application (Civil Appeal No. 4492/92 dated 20-10-1992) wherein the Judgment of the High Court refusing appointment' of Receiver was set aside and an Administrator was appointed. In that judgment, the following observations occur : ". . . He has, of course, offered an explanation that this was done merely under legal advice to save tax. In these circumstances, however, there is a distinct possibility of the said properties being held to be properties of the said Hindu Undivided Family."

The above observations though made before Pratap Singh's case was decided, show that the Supreme Court felt that there was a distinct possibility of the present suit properties being held to be Huf properties. These observations are, in our view, referable to the effect of filing of returns before the taxation authorities--and are entitled to great weight.

(25) In sum, the allegations in the plaint based on estoppel arising out of conductor action of the appellant in filing returns before the income tax, wealth tax and estate duty authorities that properties axe joint family properties-(in fact, filing them in lieu of earlier returns filed on the basis of separate property)-clearly provide sufficient cause of action for partition and accounting. Whether such a plea is to be accepted' or not is a matter for the Court to decide in the suit. The plaint cannot, therefore, be rejected under Order 7, Rule 11 Civil Procedure Code .

(26) Before parting with the case, we also have to observe that there is considerable force in the submission of the learned counsel for the respondent that the appellant's purpose in filing this Ia is to get rid of the Administrator appointed by the Supreme Court so that plaintiff can freely deal with the properties. This aspect gains more importance in the context of the convention of the appellant's counsel that the present plaint has to be rejected, and plaintiff can file a fresh suit for partition making "necessary" allegations.

(27) For the aforesaid reasons, this appeal fails and is dismissed. Parties can certainly move the Learned Single Judge on the Original Side for early disposal of the suit.