S. Jasdeep Singh vs S. Kehar Singh And Ors.
2004 Latest Caselaw 438 Del

JUDGMENT

Mukundakam Sharma, J

1. The plaintiff herein has filed the present suit praying for a decre of declaration against the defendants declaring that the oral partition dated January 5, 1989 and subsequent memorandum dated February 12, 1989 and the entire proceedings and judgment and decree dated November 6, 1989 passed in Suit No. 483/1989 by the Sub Judge, Delhi, in respect of house property No. W-18, Greater Kailash-I, New Delhi, are null and void, and also for a decree of partition in respect of the aforesaid property declaring the plaintiff and the defendants to be entitled to 1/6th share each in the said property.

2. The aforesaid suit was contested by defendants 1,2,4,5,7 and 9 by filing their written statement, whereas the remaining defendants have not entered appearance and, therefore, they have been proceeded ex parte. The aforesaid defendants in their written statement have pleaded that the present suit filed by the plaintiff, who is the son of defendant No.3, is not maintainable as he does not have any locus standi to file the present suit. It was submitted on their behalf that the plaintiff does not have any right or interest in the aforesaid property as under the provisions of the Hindu Succession Act, the plaintiff during the life time of his father cannot claim any right or interest in the share of his father's property. It was also pointed out that the defendant No.3 agreed to the partition of the suit property and to receive his share in the property including his lineal descendants which has become final and binding on the parties. It is also pointed out that earlier another brother of the plaintiff and a son of defendant No.3 filed another suit, being Suit No. 318/1997, in which a similar objection was taken by the present contesting defendants that the suit was not competent. In support of the said contention in the said suit, reference was made to the pleadings in paragraph 17 of the plaint in Suit No. 318/1997 wherein it was stated to the effect that defendant No.3 had relinquished his part of the share of the suit property in favor of his son S. Harminder Singh, the plaintiff in the said suit, and that the plaintiff was, therefore, legally entitled to 1/8th share in the suit property. As there was no such document to that effect and in support of the said plea, the said suit was withdrawn and it is stated that the present suit is actually being filed by defendant No.3 through his younger son, the present plaintiff. In the light of the aforesaid pleadings of the parties, a preliminary issue was framed in this suit to the following effect:-

" Whether the plaintiff has any locus standi to file the present suit."

3. After framing the said preliminary issue, the court ordered that the aforesaid issue be placed for arguments. The order sheet of the suit also discloses that the aforesaid preliminary issue was heard by this Court and the order was reserved as is clear from the order dated September 11, 2002. However, in the meantime the concerned judge having retired, the matter was again directed to be listed for final arguments. At that stage, defendant No.3 filed an application which is registered as I.A. No. 1570/2004 praying for transposition of defendant No.3 as plaintiff No.2. Reply thereto has also been filed by the defendants 1, 2, 4, 5, 7 and 9 opposing the said prayer. The said application was also listed for arguments and accordingly I heard the learned counsel appearing for the plaintiff, defendant No.3 and defendants 1,2,4,5,7 and 9 on the said application also, while hearing arguments on the preliminary issue. By this common order I propose to dispose of the said application as also give my decision on the preliminary issue framed by this Court.

4. The suit property is the property located at W-18, Greater Kailash-I, New Delhi. Defendant No.1 is the father of defendant No.3 and defendant No.4, whereas defendant No.2 is their mother. An oral partition took place between the aforesaid parties on January 5, 1989 which was reduced into writing in a memorandum of partition duly signed by the parties on February 12, 1989. The suit for declaration, being Suit No. 483/1989, was filed by defendant No.4 which was decreed on November 6, 1989 in terms of the compromise deed dated November 5, 1989 entered into between defendants 1,2,3 and 4. Thereafter, a suit was filed by one of the brothers of the plaintiff, namely, S. Harminder Singh, which was registered as Suit No. 318/1997. In the said suit, the present contesting defendants took up a plea that the said suit is not maintainable. In paragraph 17 of the said plaint it was stated by S. Harminder Singh that defendant No.3 herein had relinquished his part of the share in the suit property in favor of S. Harminder Singh and, therefore, the plaintiff was legally entitled to 1/8th share in the said property. The trial court directed the plaintiff in the said suit to file documents in support of the aforesaid plea. Subsequently, however, the said plaintiff withdrew the said suit unconditionally. Therefore, it cannot be disputed that in terms of the oral family settlement between the members of the HUF, namely, S. Kehar Singh and Sons, the property was partitioned as far back as January 5, 1989. A memorandum of understanding was also entered into pursuant to the aforesaid oral family settlement in terms of which Shri S. Kehar Singh got the ownership and possession of a part of the property. His wife also received title and possession in respect of another part of the property, their sons, namely, defendants 3 and 4 herein, also got their shares in the property which were identified in the said memorandum of understanding. The aforesaid memorandum of understanding was also relied upon in the suit filed for a decree of declaration being Suit No. 483/1989. The suit was decreed and a decree was passed on November 6,1989 and the compromise deed dated November 5, 1989 between the parties was made a part of the decree. The said compromise deed dated November 5, 1989 executed between the parties, namely, defendants 3 and 4, and defendants 1 and 2, reaffirmed the correctness and the validity of the memorandum of understanding dated February 12, 1989, which is signed by all the aforesaid parties. In the context of the aforesaid background facts the questions that arise in the present suit are whether defendant No.3 could now be allowed to transpose himself in the present suit as one of the plaintiffs and whether the present plaintiff has the locus standi to file and maintain the present suit.

5. The facts stated herein clearly prove and establish that defendant No.3 was a willing and consenting party to the oral partition that took place between the co-sharers, namely, the father, the mother and the two brothers, who are defendants 1,2,3 and 4 respectively. As he was a consenting and willing party, he subscribed to the memorandum of family settlement which is signed by all the parties and reduced into writing on February 12, 1989. He was also a consenting party to the compromise deed dated November 5, 1989 entered into between defendants 1,2,3, and 4 pursuant to which the Suit No. 483/1989 filed by defendant No.4 was decreed on November 6, 1989. Having willingly consented to all the aforesaid documents and also having given his consent in terms of which the decree was passed in Suit No. 483/1989, there is no ground on which the said defendant No.3 now could plead for transposing his name as one of the plaintiffs. The brother of the plaintiff, defendant No.8, in the present suit had also filed a suit for partition being Suit No. 318/1997. Even at that stage defendant No.3 did not state that the aforesaid action on his part in subscribing to the oral partition agreement and the memorandum of partition reduced to writing and a decree passed on the basis of the compromise deed dated November 5, 1989 was in any manner caused by fraud. The said suit was withdrawn by defendant No.8 who was incidentally the other son of the said defendant No.3. The defendant No.3 by his conduct has acquiesced to the partition of the property and, therefore, his prayer for transposition is misconceived. In that view of the matter I am of the considered opinion that the application filed by defendant No.3 for transposing him as one of the plaintiffs is misconceived and is accordingly dismissed.

6. After rendering decision in the aforesaid manner on the application filed by the said defendant No.3 which is registered as I.A. No. 1570/2004, I now proceed to decide the preliminary issue which is framed in the present suit.

7. The locus standi of the plaintiff is challenged by the contesting defendants on the ground that the said plaintiff cannot seek for a decree of partition during the lifetime of his father, the defendant No.3. According to the said contesting defendants, that is more so because defendant No.3 had already agreed to a partition of the suit property in the manner as recorded and observed hereinbefore. It is submitted by the plaintiff defendant No. 8, the plaintiff and defendant No. 9 were the coparceners in the joint family property as they were born on October 23, 1974, September 1, 1978, and December 13, 1978, respectively. The plaintiff has claimed that as the property in question was admittedly a HUF property and since the plaintiff and defendants 8 and 9 were born when the property was the property of Hindu Undivided Family, they were entitled to a share in the said property immediately after their birth and are coparceners. It is also alleged that since the aforesaid oral partition/memorandum of understanding was entered into denying the share of the plaintiff, therefore, the suit as framed by the plaintiff is maintainable.

8. The contention of the contesting defendants, however, was that there was a settlement in respect of the said property between the father, the mother and the two brothers including defendant No.3 through whom the plaintiff is claiming a share for partitioning the property by metes and bounds, and the said settlement having been given effect to through a memorandum of understanding and a compromise decree passed, the said suit property cannot be termed to be one in which the plaintiff at this stage can claim a right and, therefore, the plaint with the reliefs as sought for is required to be dismissed on that ground alone. In support of the said contention, counsel for the defendants relied upon a decision of this Court in Suit No. 2365/2000 disposed of on October 19, 2000 titled Master Aditya Murgai v. Ashok Murgai, and the order passed by the Division Bench on the appeal taken from the said decision in FAO (OS) No. 553/2001 disposed on November 1, 2002. I have perused the pleadings of the parties in the present and also the ratio of the decisions of this Court, both of the Single Judge as also of the Division Bench on the appeal taken there from, very carefully. In the said decision which is rendered by this Court in the case of Master Aditya Murgai (supra) also a similar question as that of the present case came up for consideration. The issue that arose for consideration was whether on disruption of a coparcenary by partition, individual coparner takes his share as exclusive property or as a separate coparcenary with his male lineal descendants. In the context of the question that arose in that suit, the learned Single Judge held that the said property having devolved to the defendant even before the plaintiff was born and also in view of the fact that as per the law, i.e., section 8 of the Hindu Succession Act, the obvious conclusion would be that the property cannot be termed to be one in which the plaintiff at that stage could claim a right or thereafter an injunction thereto. The Division Bench held that the family arrangement determines the rights and liabilities between the parties thereto at the time of settlement, but it cannot be said that the same would determine the rights of male lineal descendants of individual coparcerners nor the same could operate to extinguish the rights of their male lineal descendants which they acquire under the law on their birth. So far the plaintiff in the present case is concerned, he can claim for determination of his rights vis-a-vis defendant No.3. The aforesaid family settlement has become final and binding so far defendants 1,2,3, and 4 are concerned. The plaintiff claims right to the said property being male lineal descendant of defendant No.3. In Mulla on Hindu Law, Eighteenth Edition, Vol. I, at page 383, the learned author has to say as follows:-

"(4) Share allotted on partition - The share, which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate, and if the coparcener dies without leaving a male issue, it passes to his heirs by succession...."

9. In FAO (OS) 553/2001, Master Aditya Murgai v. Ashok Murgai, disposed of on November 1, 2002, it was observed by the Division Bench that it is settled law that on partition of a coparcenary property, the property falling into the share of each coparcener assumes a dual character. It was further observed that it becomes his separate and individual property qua other coparceners with whom partition has taken place, but as regards his own male lineal descendants it retains the character of ancestral property and, therefore, a son, grandson born before/or after partition, take a share in the property by birth. Therefore, in the present case whatever share the plaintiff may have in the property could be claimed only through his father, defendant No.3. The question as to whether a minor son can seek partition and share in the coparcenary during the lifetime of his father was settled by the Supreme Court in the decision in Kakumanu Pedasubhayya and another v. Kakumanu Akkama and another, . In paragraph (9) of the said judgment it was observed by the Supreme Court as follows:-

"(9) The law being thus settled as regards coparceners who are sui Jurisdiction, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu Law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the Court has to be satisfied that the action has been instituted for his benefit. "

10. I am of the considered opinion that the ratio of the aforesaid decisions are fully and squarely applicable to the facts of the present case. In view of the aforesaid position, I hold that the present suit filed by the plaintiff for a declaration of the nature as prayed for and as framed in the suit, is not maintainable as against the contesting defendants 1, 2, 4, 5, 7 and 9. But a suit filed properly and appropriately for partition of the share of the property received by the defendant No.3, if any, could be maintained in accordance with law. The preliminary issue is decided and answered accordingly.

11. Consequently, the suit also stands dismissed on the ground that the suit as framed is not maintainable.