Om Prakash Gulshan vs J.D. Gulshan And Ors.
2005 Latest Caselaw 282 Del

JUDGMENT

Mukundakam Sharma, J.

1. This appeal arises out of judgment and decree dated March 8, 2004 passed by the learned Additional District Judge in Suit No. 311 of 2003 whereby the learned Additional District Judge passed a preliminary decree for partition of the suit land and also or payment of mesne profits.

2. The aforesaid suit was filed by respondent No. 1, who is the brother of the appellant herein and also of the respondents 2 to 5. In the said suit a decree was sought for partition of the suit property and also for possession and also for recovery of an mount of Rs. 36,000/- and for rendition of accounts. On the basis of the pleadings of the parties the learned trial court framed as many as seven issues. The parties also led their evidence and thereafter the learned Additional District Judge proceeded to hear the parties. He passed a preliminary decree of partition in the suit and also for payment of mesne profits by the appellant at the rate of Rs.1,000/- per month from the date of filing of the suit till handing over of possession of the half portion of the property.

3. Being aggrieved by the aforesaid judgment and decree, the appellant, who was defendant No. 1 in the suit, filed the appeal making the plaintiff as respondent No. 1 and the defendants 2, 3 and 4 as respondents 2, 3 and 4 in the present appeal. Notice was issued on the appeal with a direction to the parties to maintain status quo of possession and title of the property. Thereafter a joint application was filed in this court by the appellant, the respondent No. 1 and the respondent No. 2. This application was registered as C.M. No. 9765/2004 and was dated 5.8.2004 In the said joint application they have stated that they have arrived at a settlement out of court amongst themselves in respect of the subject-matter of the suit and that in terms of the aforesaid settlement the appeal could be disposed of. The said joint application is filed by all the aforesaid parties and is also supported by their affidavits. In paragraph 2 of the said application it is stated that the parties to the appeal have resolved all their disputes amicably in order to achieve the family harmony. The terms of the settlement are also set out in the said application. It is also stated in the joint application that the defendants 3 to 5 of the original suit (respondents 2 to 4 in the present appeal) have already given their no objection and they do not claim any right, title and interest in the said property. It was stated in the said application that, therefore, the appeal be disposed of in terms of the aforesaid settlement arrived at.

4. The aforesaid application was being taken up for consideration and at that stage an application being application registered as C.M. No. 10349/2004 under Order I Rule 10 of the Code of Civil Procedure was filed by Shri Manoj Gulshan, who is the son of Shri Jai Dev Gulshan, respondent No. 1 herein. In the said application he has stated that the said suit property is an HUF property as it was purchased in the name of late Shri Manak Chand Gulshan son of Shri Kirpa Ram and, therefore, the applicant has share in the said property and, therefore, the suit could not have been filed without making him a party, nor any settlement could be arrived at by the parties without the consent and approval of the applicant. It is also stated that if the compromise is allowed to be arrived at between the parties and the suit property is partitioned then the applicant, who is a necessary party in the suit, will suffer an irreparable loss and injury as he has share in the said property and since the decree was obtained at the back of the applicant without making him a party although he was a necessary party for the determination of the suit. In view of the aforesaid stand taken by the son of the respondent No. 1 herein, we heard the learned counsel appearing for the parties on both the applications.

5. It is contended by the counsel appearing for the applicant in the application under Order I Rule 10 of the Code of Civil Procedure that the suit property which is also the subject-matter of appeal is a Joint Hindu Family Property as the said property was purchased from the Joint Hindu Family funds and that even the construction on the said property was raised from the Joint Hindu Family funds. Consequently, it is stated that the applicant being the son of Jai Dev Gulshan has got a share in the said property and, therefore, the suit could not have been filed seeking for partition of the suit property without making the applicant a party and no compromise could be effected in the said suit property without the consent and approval of the applicant.

6. The said application is, however, opposed by all other parties in the appeal contending inter alia that the said property was not an HUF property. In support of the aforesaid contention reliance was placed on the Will executed by the father of the parties hereto, late Manak Chand Gulshan. It was categorically stated in the reply filed that the property in question was the self acquired property of late Shri Manak Chand Gulshan, father of the appellant and the respondent No. 1, and the said plot was purchased by him in the month of March 1953 for Rs.5,500/- under sale deed dated March 5, 1953 and the construction of two storeys and barsati was raised by him at a cost of Rs.36,000/- purely out of his own resources. It is also stated that late Manak Chand Gulshan by his Will dated June 16, 1956 bequeathed the property in question as well as the other movable and immovable properties in favor of his wife Mrs. Mohan Devi. It is also the plea that the appellant was disinherited by his late father to succeed to his estate till the appellant mended his ways and was taken back into the family fold by the trustees appointed in the said Will. It is also stated that the immovable property situated at Jallandhar was disposed off by the mother during her lie time and the immovable property situated at Chandigarh was given by the mother to her daughter, namely, Chander Lata Kumar. It is also stated that the mother resolved the disputes between the brothers and a settlement was recorded on July 31, 1966 where by it was settled that property bearing No. 5C-33, Rohtak Road, New Delhi, would be owned equally by the appellant and respondent No. 1 and, therefore, no other legal heir of late Manak Chand Gulshan had any right, title or interest in the property in question. The Will, a copy of which is also placed on record, reiterates similar position and, therefore, reliance was sought on the said Will by the parties hereto. In the light of the aforesaid pleadings, therefore, we may consider the merits of both he applications.

7. We have heard the parties on the matters raised before us. We find that the suit was filed by the respondent No. 1 in the year 1986 seeking partition of the suit property in terms of this Will. The said litigation continued for about 18 years and was ultimately decreed by judgment and decree dated March 8, 2004 The applicant herein is the son of respondent No. 1 and had all along been residing with the respondent No. 1 at G-8, Naraina Vihar, New Delhi. He is stated to be aged about 38 years now and, therefore, was a major at the time of commencement of the lies. Although the applicant has stated that he was not aware of the partition suit filed by respondent No. 1, however he being the son of the respondent No. 1, who was the plaintiff in the suit, must aver had knowledge about the aforesaid pendency of the suit between the parties. It cannot be believed that the applicant had no knowledge about the pendency of the aforesaid suit seeking for partition of the suit property. In this behalf we may refer to the reply filed by the applicant's father, the respondent No. 1, to this application under Order I Rule 10 CPC which is to the following effect:-

''2. That the aforesaid suit for partition was filed by the respondent No. 1 in the year 1986. It is submitted that after a prolonged litigation of almost 17-18 years, the said suit for partition was ultimately decreed vide Order dt. 8.3.2004 The present applicant who is son of respondent No. 1 had all through been residing with the respondent No. 1 at ground floor at G-8, Naraina Vihar, New Delhi. The applicant had all through been well aware of the partition suit as filed by respondent No. 1 and a so was fully abreast with all the proceedings which were taking place in the said suit from time to time. Not only this, the applicant had been actively attending this case from time to time in High Court of Delhi along with his father, i.e., respondent No. 1. The applicant never came forward to move any application for his impleadment as a party to the said suit as the applicant was well aware of the fact that he had no right, title or interest in the said property and was neither a necessary party nor a proper party in the said suit. The applicant is motivated by ulterior motives of extorting money out of the share of the respondent No. 1 which he is likely to get by the sale of the property in consequence of the compromise having been arrived at between the applicant and respondent No. 1. The sole aim of the applicant is to extort money illegally out of respondent No. 1. Even the conduct of the applicant dis-entitles to his to be imp leaded as a party in the present proceedings.

3. That the property in question was self acquired property of late Sh. Manak Chand Gulshan, father of the respondent No. 1. The said plot was purchased by him in March, 1953 for Rs.5,500/- vide Sale Deed dt. 5.3.1953 and the construction of two stories and barsati was raised by him at a cost of Rs.3,6000/- purely out of his own resources. The said property in all respect was a self acquired property. Late Sh. Manak Chand Gulshan vide his Will dt. 16.6.1956 bequeathed the property in question as will as the other moveable and immoveable properties in favor of his wife Mrs. Mohan Devi. The present appellant was dis-inherited by his late father to succeed to his estate till the appellant mends his ways and is taken back into the family fold by the rustees appointed in the said Will. The immoveable property situated at Jhalendar was disposed off by the mother during her life time and the immovable property situated at Chandigarh was given by the mother to her daughter names Mrs. Chander Lata Kumar The mother resolved the dispute between the brothers and a settlement was recorded on 31.7.1966 whereby it was settled that property bearing No. 5C-33, Rohtak Road, New Delhi shall be owned equally by the appellant and respondent No. 1. No other legal hair of late Sh. Manak Chand Gulshan had any right, title or interest in the property in question. The applicant can not be claim any independent right or title in the property in question as the same was self acquired property of late Sh. Manak Chand Gulshan. No such right has even been given in the Will. Nor does Will point out that the property in question is ancestral or Joint Hindu Family Property.''

8. Thus, we find that the respondent No. 1, who is his father, has stated on oath that his son (the present applicant) used to come to the court with him to take steps in the suit during its pendency.

9. Despite the aforesaid position he never intended to file any suit or any other proceedings to claim or establish rights, if any, in the property. After the decree was passed and a settlement is arrived at amongst the parties for amicable settlement other disputes, he has come up with this application pleading that the property is HUF property which is belied by the very fact that late Manak Chand Gulshan, the admitted owner of the said property, executed the Will stating categorically and in clear terms stated that the said property was his self acquired property and by the aforesaid Will he intended to bequeath and divide the aforesaid property in two shares giving in equal proportion to his two sons, the appellant and the respondent No. 1 herein. There are three sisters in the family who are daughters of late Manak Chand Gulshan. They have also agreed not to seek for any share in the said suit property honouring the Will of the father and also in the interest of family accord. This Will was fully acted upon.

10. In the Will dated June 16, 1956, a copy of which is placed on record at page 273 of the paper book, it is clearly stated that the suit property known as `Ashiana Gulshan', 5-C/33, Rohtak Road, New Delhi-5, was purchased by late Manak Chand Gulshan in March 1953 only for Rs.5,500/- by a sale deed registered on March 5, 1953 and that construction of the two storeys and a barsati had cost him altogether Rs.36,000/- including the cost of modern sanitary fittings, electric installation for lighting and power and other accessories. It was stated clearly in the said Will in paragraph 9 that should his wife pre-deceased him then after his death all his property, movable and immovable, shall be divided in two equal proportions as suitably as possible of which one portion shall pass on to his son Jai Dev, who is respondent No. 1 herein, and the other to be kept in trust by the family for the benefit of his second son Om Parkash in case he mended his ways and taken back into the family fold by the trustees appointed in the said Will. Therefore, it is proved and established that the said property was self acquired property of Manak Chand Gulshan and, therefore, cannot be said to be HUF property for any purpose and circumstance.

11. The applicant herein is the son of Jai Dev, the respondent No. 1 herein. Even if he had any right in the said property provided the same is held to be an HUF property even then the right and claim of the applicant could be claimed through his father, namely, Jai Dev.

12. It is note worthy that even in the suit which had been filed by the respondent No. 1, the claim was not based on any plea that the property was joint family property.

13. The claim made by the applicant can also be tested thus. Assuming that the property was joint Hindu family property, even in such an event, upon the death of late Sh. Manak Chand, there would have been a deemed notional partition of such property is to three shares, namely, one of Shri Manak Chand and one each of his sons, that is the present appellant and the respondent No. 1. Therefore, each of them would have got only one-third share each. The one-third share of late Shri Manak Chand would have been divided between all heirs including his wife, his two sons and four daughters, i.e. each would have got one by twenty-one share in the property. Therefore, in case the plea set up by the applicant is accepted, his father, respondent No. 1, is entitled to only 1/3 + 1/21 share in the property which is equivalent to 8/21 share. Therefore, even on the case set up by the applicant, his father and brother would be entitled to only a share out of this 8/21. It would thus appear that the applicant is only indulging in an exercise of cutting his nose to spite his face.

14. We may at this stage appropriately refer to a Division Bench 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 [FAO(OS) No. 553/2001], which was disposed of on November 1, 2002. The issue that arose for consideration in the said case was whether on disruption of coparcenary by partition, individual coparcener takes his share as exclusive property or as a separate coparcenary with his male lineal descendants. 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 coparceners nor the same could operate to extinguish the rights of their male lineal descendants which they acquire under the law on their birth. In Mulla on Hindu Law, Eighteenth Edition, Vol. I, at page 383, the earned 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....''

15. 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, even assuming that the property is HUF property, whatever share the applicant may have in such joint family property, the same could be claimed only through his father, the appellant herein.

16. Therefore, in the light of the aforesaid discussion and the aforesaid decision of this Court, the application which is filed by the applicant under Order I Rule 10 of the Code of Civil Procedure is held to be not maintainable and cannot be entertained in the present appeal. The stand of all the parties in the appeal are that the property is a self acquired property. This position was not only accepted but fully acted upon by all the legal heirs of late Shri Manak Chand Gulshan. The applicant, Manoj Gulshan, has also accepted this position and assisted his father in pursuing the claim made on such basis. The present application is clearly malafide and an abuse of the process of law. We, therefore, hold that the applicant has no right to fill the application and is not a necessary party to the present proceedings.

17. We may point out that in view of the aforesaid discussion, the applicant can at best have a claim only against his father's share. If the applicant's claim was sustained, his father would get a much lesser share than he has got or is taking by settlement. Therefore, also ,looked at from any angle, even if the applicant has a right as claimed, the same is only vis-a-vis his father and the same has not been impinged upon in any manner. Therefore, the applicant cannot be imp leaded as a party in the present appeal and he cannot be said to be a necessary party in any manner. The judgments relied upon by the applicant are not applicable in the facts of this case and in view of our findings that the applicant is not a necessary party for the present suit. In that view of the matter, the application is found to be without any merit and is dismissed.

18. Having held thus, we may now proceed to examine the application filed by the parties hereto under Order XXII Rule 3 of the Code of Civil Procedure. During the pendency of the aforesaid appeal in this court the parties have arrived at a settlement.

The terms and conditions of the settlement have been set out in the application filed by the appellant, respondent No. 1 and respondent No. 2. So far the respondents are concerned, they have not contested the suit and have filed their written statement and affidavits contending that they have no objection and they do not claim any right, title and interest in the said property. One of them has also given a statement in this Court stating that she does not claim any right, title and interest in the said property. Provisions have been made in respect of respondent No. 2 who has also put her signatures in the joint application acknowledging and admitting the terms of settlement. We have also gone through the aforesaid terms of settlement arrived a between the parties and we are satisfied that the said terms and conditions are bonafide. The application is signed by all the parties and their counsel. The averments made in the application are also supported by the affidavits filed by the parties. We have recorded the statements of the appellant, the respondent No. 1, respondent No. 2 and respondent No. 4. They have all agreed that they have arrived at a settlement out of court in terms of which division of property is made amongst them and that they are bound by the aforesaid undertakings. The aforesaid statements are taken on record. The parties shall be bound by their undertakings given to this Court and they shall act upon the same.

19. In the light of the aforesaid settlement arrived at between the parties, a final decree of partition is passed in the suit. The joint application which is marked `Ext.C-1' shall form part of the decree. In terms thereof the appeal stands disposed of leaving the parties to bear their own costs. The parties shall get the suit property partitioned in terms of the settlement.