Vishan Das Advani vs Hiranand Advani
1996 Latest Caselaw 538 Del

JUDGMENT

S.K. Mahajan, J.

(1) That one Shri Tola Ram, father of the parties to the suit was the owner of the property being House No. 13/28, East Punjabi Bagh, New Delhi and 1356/57, Street No. 4, Faizganj, Bahadurgarh Road, New Delhi. Shri Tola Ram died on 6th September, 1983, leaving behind him a Will executed on 1st April 1965 by virtue of which parties to the suit were given equal shares in his properties. Besides the properties left behind by the deceased Tola Ram, the parties had also jointly purchased a property being No. 6/28, East Punjabi Bagh, New Delhi and they had equal shares therein. The plaintiffs filed the present suit for partition .of the said properties on the ground that it was not possible for them to live together and they, therefore, wanted separate possession of their respective shares in the said properties.

(2) The defendant in the written statement has not denied the share of the parties either in the properties left behind by the deceased Tola Ram or in the property jointly purchased by the parties. The only plea taken in the written statement in respect of the said properties was that the defendant had from his own resources contributed much in excess of his l/3rd share. Similarly in the Faizganj property as well as in the property left behind by the deceased the defendant's case is that he had made some additions with his own funds. Besides the immovable properties, the defendant has alleged that the deceased had left behind certain movables including deposits with the bank. It is also alleged that the First plaintiff purchased a flat being No.5, B-16, Bhagwan Das Nagar, New Delhi with the joint funds of the parties and a shop on the first floor at 138/7, Tilak Bazar, near Khari Baoli was also purchased in the same manner allegedly usurping the assets of the joint family,

(3) That on 2nd March, 1993 when the suit came up for hearing before the Court the parties agreed to have a local commissioner appointed to suggest the mode of partition of the properties of late Shri Tola Ram in accordance with the Will. At the time of passing of this order no objection was raised by any of the parties about their share in the properties. The local commissioner after hearing the parties filed his report on 28th April, 1994 suggesting the mode of partition of the two properties mentioned in the Will of the deceased Tola Ram as also the property being No.l3/28, East Punjabi Bagh, New Delhi which was purchased jointly by the parties. The partition had been suggested considering the share of the parties to be equal in all the said properties.

(4) The objections to the report of the local commissioner were filed by the defendant. One of the objection taken was that this Court had directed the local commissioner to suggest the mode of partition in regard to the properties left behind by late Shri Tola Ram which were the subject matter of Will, however, the local commissioner had also suggested the mode of partition of the property being No.l3/28 which was not the subject matter of Will and as such the report was stated to be beyond the jurisdiction of the local commissioner. Certain other objections to the report of the local commissioner were also taken, however, no objection was at any time taken by the defendant to the effect that the order dated 2nd March 1993 was not the preliminary decree.

(5) By this order I am disposing of these objections of the defendant in I.A.870/95 and the application under Section 5 of the Limitation Act for condensation of delay in filing the objections being I.A.871/95. By this order, I am also disposing of the applications of the plaintiffs being I.A.6832/93 for injunction in respect of the property being No.6/28, East Punjabi Bagh, New Delhi and also the applications of the defendant being I.A.661/95 and I.A.11114/95. In I.A.661/95, the plaintiff seeks an order of the Court to decide the insanity of the plaintiff No.2 and also seeks a decision to include other properties for partition. The defendant has prayed that before partitioning the suit properties namely the three properties about which the report has been given by the local commissioner, the other properties namely flat No.5, B-16, Bhagwan Das Nagar, New Delhi, Shop at Tilak Bazar, Khari Baoli and bonds of the value of Rs.40 lacs be also included in the properties which are liable to be partitioned. The question of insanity of plaintiff No.2 was decided by this Court by order dated 1st February, 1995 and it was held that it cannot be said that the said plaintiff was suffering from any disability. I.A.661/95 which also included the prayer for including other properties for the purposes of partition was dismissed by the Court by the said order dated 1st February 1995.

(6) The thrust of the arguments of Mr.Rohtagi, Senior Advocate appearing for the defendant is three fold namely; (i) the suit was for partial partition inasmuch as the Bhagwan Das Nagar property and the Tilak Bazar Shop as well as the movable bonds were not included in the properties which were liable to be partitioned; (ii) No preliminary decree has been passed by the Court and the order dated 2nd March 1993 cannot be said to be a preliminary decree; and (iii) The Commissioner has referred to three properties while order dated 2nd March 1993 was only in respect of the two properties which were the subject matter of the Will.

(7) Taking the first objection of the defendant that the suit was for partial partition inasmuch as the Bhagwan Das Nagar flat and Tilak Bazar Shop as well as bonds were not included in the order dated 2nd March 1993, it may be observed that admittedly the Bhagwan Das Nagar flat is not in the joint names of the parties nor is the Tilak Bazar Shop.

(8) The plaintiffs have not admitted these properties to be joint properties and even according to the defendant's submissions these two properties are in the individual names of plaintiff No.l. No request was made to the Court on 2nd March 1993 to include these-properties as well in the properties to be partitioned. Even to the report of the local commissioner, no such objection has been taken. In my opinion, therefore, these properties have rightly not been included in the properties to be partitioned and they could not be made subject matter of the preliminary decree.

(9) Main stress of Mr.Rohtagi is that the order dated 2nd March 1993 is not a preliminary decree. The submission is that unless the shares of the parties were decided by the Court, no preliminary decree could be passed. According to him a preliminary decree passed without the declaration of rights and shares of the parties could not be given effect to and consequently no final decree could be passed. For this, Mr.Rohtagi placed reliance upon the judgment reported as Sarbeswar Panda and others Vs. Bibhabasu Panda, . He has also placed reliance upon the judgment reported as Venkata Reddy Vs. Pethi Reddy and S.V.Muthu vs. Veerammal and another .

(10) In Venkata Reddy Vs. Pethi Reddy (supra), the Court was concerned with the interpretation of Section 28A, proviso I of the Provincial Insolvency Act as amended in 1948. In my opinion this judgment will not be of any assistance to the plaintiffs for deciding as to whether the order dated 2nd March 1993 passed by the court was a preliminary decree.

(11) In S. V.Mutha Vs. Veerammal (supra) it was held as under:- "IF the preliminary decree already passed does not contain any declaration as to the rights of the defendants, their application for partition or separation of their share shall not be maintainable till they have the preliminary decree suitably modified, but when once the preliminary decree contains a declaration as to the defendant's share, they can, even after the passing of the preliminary decree take steps for the actual separation of their share. Indeed, in the instant case, no such steps have been taken by the petitioners to modify the preliminary decree in any-manner for having their shares 'also declared and until such time, it is not open to the petitioners to claim that they are entitled to the amount in deposit. It is undoubtedly open to the petitioners to take such steps as they may be advised to have the preliminary decree amended in such a manner as to include a declaration of their right[s as regards their share in the properties as well and only then they can seek payment of the amount of deposit."

(12) In Sarbeswar Panda and others Vs. Bibhabasu Panda (.supra), again the Division Bench of the Calcutta High Court has held that where the rights and shares of the defendants are not declared in the preliminary decree, the commissioner was not competent to partition and make separate allotment of the shares in respect of the properties of the suit in their favour unless the said preliminary decree is modified declaring their right and share either in appeal or on review of the said preliminary decree.

(13) The settled proposition of law, therefore, appears to be that unless the rights and shares of the parties are declared in the prefinery decree the commissioner does not have any jurisdiction to partition the property and make separate allotment of the shares in respect of the property in favour of different owners. It is with this background that I have to consider whether the order dated 2nd March 1993 declares the rights and shares of the parties to the suit.

(14) Till this day except the oral arguments advanced at the hearing of the case, no objection whatsoever has been raised by the defendant to the effect that the order dated 2nd March 1993 is not a preliminary decree, A perusal of the record shows that the defendant has all through proceeded with the case considering this order to be a preliminary decree. Against an order dated 1st February 1995 dismissing I.A.661/95 whereby this Court had held plaintiff No.2 to be not suffering from any disability, the defendant had filed an appeal before the Division Bench of this Court. Even in appeal the parties had proceeded on the assumption that the order dated 2nd March 1993 passed by this Court was a preliminary decree. The Division Bench while disposing of the appeal has held as under :- "THE appellant and respondents 1 and 2 are brothers. The suit was filed in 1992 for partition by two respondents- plaintiffs, Suit has ended in a preliminary decree. The appellant who is defendant contended in the written statement that second plaintiff was not of sound mind. Even so, the appellant had not asked for the framing of an issue on that question before the preliminary decree was passed. Now when the final decree is about to be passed, the appellant has filed Ia No.6198/93 and raised the same objection again contending that the second plaintiff is of unsound mind. It is not the case of the appellant that the second plaintiff was of sound mind before the passing of the preliminary decree but has subsequently, after the passing of the preliminary decree, become of unsound mind. Appellant's case was that even at the time of filing the suit, second plaintiff was of unsound mind. In as much as the appellant did not raise any issue in the suit, the matter becomes constructive res judicata and it cannot be raised now by way of fresh IA.6198 of 1993. The learned single Judge, in fact, examined the second plaintiff in Court to ascertain his state of mind. After examination of the second plaintiff in Court, the learned single Judge was fully satisfied that the second plaintiff was not suffering from any disability. The contention now raised is that there was no basis for the satisfaction of the learned single Judge on this issue and we must direct medical examination of the second plaintiff. If the appellant was indeed so keen on this question raised in the written statement, he should have got an issue raised and got it decided before the preliminary decree was passed."

(15) A perusal of the order passed by the Division Bench shows that the Division Bench has also considered this order to be a preliminary decree and has proceeded to decide the appeal on that assumption. It was not the case of the defendant even in the appeal that this order was not the preliminary decree. Faced with the order of the Division Bench of this Court the arguments of Mr.Rohtagi were that the Division Bench was only concerned with the question as to whether the plaintiff No.2 was a person of unsound mind and the Court was not at all concerned as to whether the order dated 2nd March 1993 was a preliminary decree. The contention, therefore, is that any observation made by the Division Bench about the matter which was not the subject matter of controversy before the Court cannot be relied upon for the proposition that the order dated 2nd March 1993 was a preliminary decree. I am afraid, I am unable to agree with the contention of Mr.Rohtagi All through the proceedings not only in this Court and in the appellate court but also before the local commissioner the defendant has proceeded on the assumption that the oer dated 2nd March 1993 was a preliminary decree. In my opinion, it is too late a stage now to contend that the said order is not a preliminary decree more so when no such objection has been taken anywhere in the pleadings or in any of the applications which have been argued today by the parties.

(16) After the plaintiff had in the plaint stated that the parties to the suit had 1/3 share each in the properties left behind by the deceased Tola Ram as also in the property which had been jointly purchased by the parties, the defendant did not deny the same. In fact, it has been admitted by the defendant that the parties to the suit had 1/3 share each in all these properties. The only objection raised was that the defendant had in fact contributed excess money not only in the East Punjabi Bagh property but also in the Faizganj property. Faced with the situation, in my opinion, the Court has rightly directed the matter to the local commissioner to suggest the mode of partition as there was nothing more to be done by the Court. There was no need for the Court to specifically declare the rights and shares of the parties as the parties themselves had agreed that each one of them had l/3rd share in the properties. In my opinion, there was no need either of framing any issue on this point or to give any detailed judgment on the rights and shares of the parties. The parties had proceeded on the footing that they had 1/3 share each in the properties and consequently no issue was raised nor any decision was given on the point by the Court. I am, therefore, of the considered opinion that the order dated 2nd March 1993 is a preliminary degree.

(17) The only other point which remains, therefore, to be considered is, what is the effect of that part of the order where the local commissioner has been requested to suggest the mode of partition of the properties of late Shri Tola Ram in accordance with the Will. It is not disputed that the Will mentions about the two properties whereas the local commissioner has proceeded to suggest the mode of partition of the three properties. Moreover the plaint also seeks partition of the three properties. It is no doubt true that the local commissioner was requested to mode of partition of the properties in accordance with the Will of the deceased Tola Ram, but can it be said that the third property which admittedly did not belong to Tola Ram could not be the subject matter of the preliminary decree or the local commissioner could not have suggested the mode of partition of the said property. In my opinion the answer has to be in the negative. The whole controversy between the parties has to be decided finally without any further litigation amongst themselves and once the plaintiff had come to the Court for partition of the properties which were jointly owned by the parties all the said properties are required to be partitioned. There may be an omission in the order of 2nd March 1993 when no reference of the third property has been made to the local commissioner. That alone, in my opinion, will not be sufficient not to partition the third properly or to hold that the third property was not the subject matter of the preliminary decree. There is no dispute between the parties that each one of them had 1/3 share in the said property and there were, therefore, no reason not to include the same in the properties which were to be partitioned. Under Order 2 Rule 1 every suit has to be framed in a manner so as to afford ground for final decision for the subject in dispute and to prevent further litigation concerning them. The subject in dispute in the present case were the joint properties of the parties. The joint properties were not only the properties which were mentioned in the Will of the deceased, but was also the property being No.l3/28, East Punjabi Bagh, New Delhi. The defendant had also given suggestion before the local commissioner and alõo filed plans before him for partition of this property as well which clearly shows that the defendant had also taken this order to be a preliminary decree for partition of all the properties including 13/28, East Punjabi Bagh, New Delhi. In any case I allow this property to be included in the properties which are required to be partitioned between the parties.

(18) One other question which remains for consideration is about the movables left behind by the deceased. The defendant has in the written statement mentioned about certain bonds which were left behind by the deceased and which according to him on maturity have been encashed by the plaintiffs. The defendant has even given one bank account in the name of Mr. Ramesh Krishan Kumar Adwani, son of the first plaintiff where some of the proceeds of the bonds were deposited after encashment. I am, therefore, of the view that the dispute about the bearer bonds which allegedly were owned by the deceased Tola Ram were also required to be referred to the local commissioner. While, therefore, holding that the order dated 2nd March 1993 was a preliminary decree, I further hold that the parties to the suit had 1/3 share each in the properties 6/28, and 13/28, East Punjabi Bagh, New Delhi, 13/56-57, Street No.4, Faizganj, Bahadurgarh Road, Delhi as also the movables namely the bearer bonds which were owned by the deceased at the time of his death. The local commissioner is, therefore, requested to further go into the matter and decide as to whether the deceased had left behind any bearer bonds and if so what was the total value of the said bonds and what will be the share of each of the parties therein. Local commissioner will suggest the mode of partition of all the aforesaid properties including the bearer bonds. For this purpose, he will be at liberty to summon not only the record available with the parties but also from any other party including Government undertakings or departments. The local commissioner shall be paid in the first instance a further fee of Rs. 10,000.00 . The parties shall maintain status-quo in respect of the possession as well as construction in respect of immovable properties which are the subject matter of partition in the present suit till further orders.

(19) With these observations, all the interim applications are disposed of.