Shanti Devi And Anr. vs Ram Swarup Goela And Anr.
1996 Latest Caselaw 896 Del

JUDGMENT

M.K. Sharma, J.

(1) The present suit has been instituted by the plaintiffs seeking partition of the property bearing No. 152-D, Kamla Nagar, Delhi-110 007 and for rendition of accounts relating to the business carried on in the name and style of M/s. Sita Ram Goel and Brothers.

(2) The case of the plaintiffs as pleaded in the plaint is that the plaintiffs and the defendants constituted a Hindu undivided family known as Sita Ram Goel and Brothers and that the said Joint Hindu Family has been carrying on business at 152- D, Kamla Nagar, Delhi-110 007. The claim of the plaintiffs is based on a Deed of Partition which was executed on 17.8.1957. In the plaint, the plaintiffs have claimed that the parties to the present suit have l/4th share each in the aforesaid property being No. 152-D, Kamla Nagar, Delhi-110007. According to the plaintiffs, after the execution of the deed of partition dated 17.8.1957 the defendant No. 1 continued to act as the Karta of the Joint Hindu Family and since he started misusing his position as Karta of the family the present suit has been instituted by the plaintiffs seeking partition of the property. It is stated that the entire property has been in use and occupation of all the coparceners of the properties who are co-owners and having equal shares in the property and that the defendant No. 1 is in use and occupation of one flat on the first floor of the property which is just below the flat which is in use and occupation of the plaintiffs on the second floor of the premises and that the plaintiff has also one Barsati in their possession. Since the said property is a Hindu undivided family property the plaintiffs have a right to seek for partition of the said property by metes and bounds and in fact requested the defendant No. 1 for such a partition. The defendant No. 1 not only refused to make any partition but he has also not given full accounts of the Huf funds and has been manipulating the accounts of the Huf for his personal gains. Accordingly, the present suit has been instituted by the plaintiffs.

(3) The defendants in their written statement denied the claim of the plaintiffs. It has been stated in the said written statement that the plaintiffs jointly have I /3rd share and that the defendant No. 1 has 2/3rd share in the property. It is categorically denied in the written statement that the parties to the suit validly constituted a Joint Hindu Family and stated that in fact and law the parties to the suit continued to be the joint owners of all the assets of M/s. Sita Ram Goel and Brothers including 152- D, Kamla Nagar, Delhi-110 007 wherein the defendant No. 1 has one half share and the plaintiffs and defendant No. 2 have the other half. It is further stated that the suit for rendition of accounts relating to the assets of M/s. Sita Ram Goel & Brothers is not maintainable and that the rent received from the tenants of the property No. 152- D, Kamla Nagar, Delhi are deposited with business houses and the interest is earned from such deposits. It is further stated that proper and regular accounts in respect of rents received and the interest earned from the deposits are maintained which are regularly inspected by the parties.

(4) On the pleadings of the parties the following issues were framed :

1. What is the share of the parties in property No. 152-D, Kamla Nagar, Delhi? 2. Whether there is any other immovable property which is jointly owned by the parties to the suit? 3. If there is such other joint property, then can the present suit be maintained without including the other property in the scope of the suit? 4. Whether the first plaintiff has no locus standi to file the suit? 5. Whether the suit requires the joining of any other parties as claimed by the defendants? 131 6. Is the plaintiff entitled to get the accounts of the joint family funds and what orders are necessary in this behalf? 7. To what relief is the plaintiff entitled?

(5) The plaintiffs and the defendants both adduced documentary as well as oral evidence in the suit. The plaintiffs examined witnesses on their behalf whereas the defendants examined witnesses on their behalf.

(6) Have heard arguments of the learned Counsel appearing for the parties and I propose to dispose of the suit as follows :

(7) Issue No. 4: Since this issue relates to the locus standi of the first plaintiff to file the suit the same is being taken up first. According to the plaintiffs they are coparceners in the Hup property which includes the suit property, whereas according to the defendants the plaintiffs could at best be co-owners of the properties. Even going by the statement made in the written statement that the plaintiffs could at best be co-owners of the suit property the plaintiff No. 1, who is a widow is admittedly a co-owner of the properties and has got a share as per the deed of partition of the year 1957 which has been exhibited as Public Witness . 1 /1. Since the plaintiff No. 1 has a share in the said property, I am of the view that the plaintiff No. 1 has locus standi to file the present suit. The issue is, therefore, answered accordingly, in favour of the plaintiffs.

(8) Issue No. 5: I now propose to take up Issue No. 5 which relates to the objection raised by the defendants about non-joinder of the necessary parties. As per the deed of partition of the year 1957 which is Exhibited as Ex. Public Witness . 1/1, on which both the plaintiff and defendants are relying upon and basing their claims, the suit property fell to the share of the present plaintiffs and the defendants. The two persons, who according to the defendants, should have been joined as parties to the suit claim share in the property through their father namely - defendant No. 1. Accordingly, on consideration of the pleadings of the parties and evidence on record, in my opinion the said two persons were not necessary parties for decision in the present suit. The issue is therefore, answered accordingly in favour of the plaintiffs, holding that the suit is maintainable in its present form and is not bad for non-joinder of necessary parties.

(9) Issue No. 1: This issue relates to the determination of the extent of shares of each of the parties to the suit in the suit property. According to both the Counsel for the parties the answer to this issue would depend upon the interpretation of the partition deed which is Ex. Public Witness . I/1, which is signed by all the parties of the present suit and also is a registered document. In the said partition deed the defendant No. 1 has been described as the 5th party, the plaintiff No. 2 as the sixth party, defendant No. 2 as the 7th party and the plaintiff No. 1 as the 8th party. There is a further recital in the said partition deed to the following effect :

"WHERE AS Ram Sarup party number five, Sita Ram party number six. Ram Kanwar party number seven and Shanti Devi party number eight, who decided to remain united as a group and continue to constitute a Joint Hindu Family amongst themselves, decided to get their shares separated from the other members of the family namely - party Nos. 1, 2, 3 & 4."

There is another recital in the said partition deed as under :

"THAT Ram Swarup the fifth party, Sita Ram the sixth party. Ram Kanwar the seventh party and Shanti Devi, the eighth party, who constitute a Joint Hindu Family amongst themselves, jointly got the properties which are detailed in Schedule 'F' and the other parties have no interest, claim or right in or upon the said properties".

Some of the relevant clauses of the aforesaid partition deed having a bearing on the facts and circumstances of the present case are quoted hereunder :

"5.The total value of the family assets partitioned amounted to Rs. 1,44,147.14. After deducting Rs. 64,850.15, the value of the biggest share allotted jointly to party Nos. five, six, seven and eight, the remaining value comes to Rs. 79,269.15 on which stamp of Rs. 800.00 is payable. Hence this deed is executed on a stamp of Rs. 800.00. 6. That the term party shall always include his or her or their legal heirs, representatives, administrators and executors etc. That the parties alongwith their heirs, if any, shall be bound by this indenture. Schedule T': The assets that fell to the joint share of Ram Sarup, Sita Ram and Ram Kanwar and Shanti Devi, party numbers five, six, seven and eight respectively, are as under: (a) Moveable property valued at Rs. 200.00. (b) Immoveable house-hold property and valued at Rs. 50,300.00 details of which are given below; One house situated at 152-D, Kamlanagar, Delhi, and bounded as shown below: East: 30' road. West: House on plot No. 151-D. North: 60' road. South: 15' road. (e) A share in the assets and effects of the joint family business carried on under the name and style of M/s. Munna Lal Bishamber Dayal at Murthal amounting to Rs. 14,350.15 only out of the said total assets of the business amounting to Rs. 52,322.66. Hence the total assets that fell to the joint share of Ram Sarup, Sita Ram and Ram Kanwar and Shanti Devi, party numbers five, six, seven and eight respectively, amounted to Rs. 64,850/15.00 only."

(10) According to the aforesaid partition deed the total value of the assets including both movable and immovable properties belonging to the Joint Hindu Family amounting to Rs. 1,47,144.47 out of which the share of Munna Lal was assessed at Rs. 25,971.76 and that of Bishamber Dayal at Rs. 18,850.00, Giri Lal had Rs. 32,425.76 Munna Lal was the father of the defendant No. 1 and Bishamber Dayal is the brother of Munna Lal. Kurian Devi who was party No. 3 in the partition deed was the wife of Munna Lal whereas plaintiff No. 1 is the widow of Rughan Mal and plaintiff No. 1 and defendant No. 2 are the sons of Rughan Mal who died in the year 1944, who happened to be the second son of Munna Lal. Ram Sarup, on the other hand is the defendant No. 1 in the present suit and is one of the sons of Munna Lal. "The partition deed is a registered document and signed by the parties to the present suit. The said deed further recites that the partition so effected by the deed was by mutual and free consent and that it would not be open to challenge the said partition by the parties on the ground of reasonableness. The said deed, therefore, cannot be disputed by any of the parties to the suit.

(11) The Counsel for the plaintiff relied upon the recitals in the said deed for his submission that the plaintiffs and the defendants decided to remain united as a group and continued to constitute a Joint Hindu Family amongst themselves and decided to get their share separated from the other members of the Joint Hindu Family. He further relies upon another recital in the said deed providing that the parties to the present suit constituted a Joint Hindu Family amongst themselves jointly got the properties described in Schedule "F'. Relying on the aforesaid recital the Counsel submitted that the plaintiffs and the defendants intended to constitute a Joint Hindu Family and therefore their share in the suit property is to be treated as equal as each of them is a coparcener, therefore, the plaintiffs would be entitled to 1/2 share in the property and the defendant No. 1 having purchased the share of the defendant No. 2 he would be entitled to 1/2 share in the property.

(12) The further contention of the learned Counsel for the plaintiff is that that at the stage when the joint Hindu family was constituted the share in the property of each of the members even assuming to be not equal the defendant No. 1 by his actions intended to throw and in fact threw whatever share he had in the property to the common stock which became a Huf property and therefore, the shares of each of the members was equal. According to him at the time when the said partition took place between the parties the share of the defendant No. 1 was blended with that of the other parties and that the defendant No. 1 abandoned whatever right he had in the property by throwing the property to the common stock with the intention of making it a joint Hindu family property, where all members have equal shares.

(13) Counsel for the defendants however, submitted before me that the recitals of the partition deed itself prove and establish that the defendant No. 1 was given 1 /2 share in the suit property and the heirs of his predeceased brother, Rughan Mal were given the other half in the property. In support of his submission he also relied upon the recitals in the partition deed. From the schedule annexed thereto the learned Counsel pointed out that the sons of Munna Lal were given almost equal shares. He drew my attention to the share given to Giri Lal son of Munna Lal under the aforesaid partition deed. According to the schedule the total assets that fell to the share of Giri Lal amounted to Rs. 32,425.76. The other two brothers namely the defendant No. 1 and Late Rughan Mal, the husband of plaintiff No. 1 and father of plaintiff No. 2 & defendant No. 1 were given double the shares as that of Giri Lal thereby indicating that defendant No. 1 gets half of the share of Schedule "F' properties and the plaintiffs and defendant No. 2 gets the other half being the heirs of predeceased son Rughan Mal. According to the Counsel this fact is also corroborated and gets support from the contents of the partial partition deed entered into between the parties to the suit and also from the records produced before the Income Tax Authority by the parties which were also signed by the parties to the suit. The learned Counsel has also drawn my attention to the affidavit sworn by the plaintiff No. 1 and filed before the Income Tax Authority which is Ex. D.W.4/1. My attention was also drawn to the order of the Income Tax Officer accepting the defendant No. 1 as one family and the plaintiffs and the defendant No. 2 as the members of the other family. The said order of the Income Tax Officer is also Ex. D.W.1/3.

(14) Before I analyse the oral as well as documentary evidence, it would be necessary to look into the contents and recitals of the partition deed which the plaintiff and defendants hereto have all signed. This partition deed was executed in pursuance of family settlement of Munna Lal and Bishamber Dayal, his brother and the heirs of Munna Lal including his widow and sons including the sons and widow of the pro-deceased son, Rughan Mal.

(15) The law in respect of interpretation of a deed is well settled. In order to find out the intent and purpose of the parties and the meaning of the recitals in the said deed, plain and natural meaning is to be given to each of the clauses. An instrument is always to be construed according to the strict plain common meaning of the words used in the instrument. The intention of the parties could also be gathered from the surrounding circumstances when the recitals in the deed are found to be somewhat ambiguous, vague and uncertain in certain respects. It is true that the plaintiffs and the defendants hereto intended to remain joint and accordingly were given the properties jointly. However, since the husband of the plaintiff No. 1 and the father of plaintiff No. 2 & defendant No. 2 died in the year 1944 they were put together with the defendant No. 1 so that he could look after the widow and the children of his deceased brother and their properties as well and therefore, they remained joint. The share allotted to the said group was also Rs. 64,850.15 which was just the double of the share allotted to the other brother namely - Giri Lal.

(16) My attention is also drawn to the agreement dated 1.12.1972 marked Ex. PW1/DA affecting partial partition between the plaintiffs and the defendants. Under the aforesaid deed a sum of Rs. 1,50,000.00 was divided amongst the parties out of which half of the amount i.e. about Rs. 75,000.00 was given to the defendant No. I and the balance amount of Rs. 75,000.00 was divided equally i.e. at Rs. 25,000.00 amongst the plaintiffs and the defendant No. 2. In the said deed it was specifically stated as follows :

"THAT out of the said amount of Rs. 1,50,000.00 to be divided by the partial partition Shri Ram Sarup Goel the first party will get Rs. 75,000.00. Shri Sita Ram Goel, Shri Ram Kumar Goel and Smt. Shanti Devi, second, third and fourth party respectively get Rs. 25,000.00 each in the ratio of their share in the Hindu undivided family."

(17) The aforesaid partial partition deed is also signed by both the plaintiffs and defendants in the presence of witnesses. This deed, therefore, makes it apparent that even the parties to the suit are fully aware and also intended that the defendant No. 1 souls take one half and the other half being equally divided amongst the other 3 members who are plaintiffs and defendant No. 2 in the present suit and are heirs of the other brother of defendant No. 1. The documents produced before the Income Tax Authority including the affidavit filed by.plaintiff No. 1 which is Ex. DW.4/1 and the order of the Income Tax Authorities accepting the defendant No. 1 as one family and the plaintiffs and defendant No. 2 being as the other family exhibited as DW.I/3 corroborate the recitals in the aforesaid partial partition deed that the defendant No. 1 is entitled to half share in the property and the balance half share to be equally divided amongst the other three members. The plaintiff No. 2 also wrote a letter to the Income Tax Authorities on 23.3.1976 which is Ex.DW.2/l, stating inter alia, that there are two families - one consisting of the defendant No. 1 and the other of the plaintiffs and defendant No. 2. Similar letters have also been exhibited as Ex. DW3/1. In view of such documentary evidence being available on record and also in view of the statement of the witnesses examined on behalf of the defendants it is clear and apparent that the parties to the suit intended that the defendant No. 1 is the owner of half of the properties belonging to the group whereas the other half belongs equally to the other family, the heirs of Rughan Mal consisting of his widow, plaintiff No. 1 and two sons being plaintiff No. 2 and defendant No. 2. At this stage it would be relevant to point out that Public Witness PW1 (plaintiff No. 2) has admitted in his deposition that an offer was given to the defendant No. 1 that in case he agrees to the partition of the properties outside Court, the plaintiff would be agreeable to give him 2/3rd share in the properties and that the said offer was given before filing of the suit.

(18) The submission of the learned Counsel for the plaintiff that each of the parties to the suit is the owner of 1 / 4th holding of shares in the suit property relying mainly upon the recital in the partition deed cannot be accepted in view of the documentary evidence adduced by the defendants and referred to above. The aforesaid expression in the partition deed stating that parties hereto get properties jointly mean that the parties were intended to be co-owners of the property and not naturally equal shareholders in the property. Accordingly, I hold that the defendant No. 1 is entitled to half of the share in the suit property whereas the plaintiff and the defendant No. 2 are owners of the other half of the suit property. The defendant No. 2 having sold his share in the said property to defendant No. 1 the said share has also devolved upon the defendant No. 1 and therefore, the shares of the respective parties in the suit are thus determined. Issue No. 1, therefore, is answered accordingly.

(19) Issues No. 1 & 3 : As per the partition deed the group' consisting of the plaintiffs and the defendants were given assets of the properties mentioned in Schedule T'. The said assets consisting of movable properties valued at Rs. 200.00 and immovable household properties situated at Kamla Nagar and at Murthal. The properties at Murthal were the subject matter of litigation between the parties in the Court at Sonepat wherein the share of the parties to the present suit in Murthal properties stood determined in accordance with die judgment delivered by the said Court. The said litigation went up to the High Court of Punjab and Haryana and accordingly, the shares of the parties in the Murthal properties stood finally determined and cannot be reopened or be made subject matter in the present suit. Therefore, it is held that the present suit is maintainable without including the properties situated at Murthal within the ambit of the present suit. Issues No. 2 & 3 are decided accordingly in favour of the plaintiffs.

(20) This leaves me with the determination of Issues No. 6 & 7. Issue No. 6 relates to the accounts of the joint family funds and the orders are necessary in this behalf and Issue No. 7 relates to relief to be granted in the suit. So far accounts of the suit property are concerned, according to the learned Counsel for the defendants the same are being produced in the Court in accordance with the order passed by this Court. As under Issue No. 11 have already determined the shares of each of the parties to the suit in the suit property each of the shareholders to the property would be entitled to receive their/individual share in the income derived from the suit property. In order to render accounts I deem it appropriate to appoint a Local Commissioner who would go into the accounts relating to the suit property and entitlement of the amount thereof by each of the shareholders to the aforesaid property.

(21) As a result of above discussion, I grant a preliminary decree in the present suit declaring the plaintiffs and defendant No. 2 jointly as owners of 1/2 share and the defendant No. 1 as owner of the other 1/2 share in the suit property. As the defendant No. 2 has sold his 1 /3rd share in the 1 / 2 share of the suit property to the defendant No. 1, it is also declared that the defendant No. 1 is the owner of the said l/3rd share in the other half of the suit property as well. I appoint Shri Rajendra S. Chaggar, Advocate, Chamber No. 68, Western Wing, Tis Hazari Courts, Delhi, as Local Commissioner with a direction to effect the partition of the properties and put the parties in their respective shares. He shall also go into the accounts of the amount realised by the defendant No. 1 as rent of the properties and also distribute the shares of each of the shareholders. The fee of the Local Commissioner is fixed at Rs. 10,000.00 to be paid equally by the plaintiff and defendant No. 1. List this matter for directions on 18.11.1996.