Shri Jageshwar Nath vs State & Ors.
2009 Latest Caselaw 5285 Del

*       HIGH COURT OF DELHI : NEW DELHI

                      FAO. No.60/2008

%       Judgment reserved on:           2nd December, 2009

        Judgment delivered on:          18th December, 2009

Shri Jageshwar Nath
S/o. Late Shri Ram Kishan Dass
R/o. 2680, Chooriwalan,
Delhi-110006.                                       ....Appellant.
                            Through:          Ms. Anshu Aggarwal, Adv.

                              Versus
1. State.

2. Union of India,
   Through Secretary,
   Ministry of Health & Family Welfare,
   Nirman Bhawan, New Delhi-110001.

3. Ram Manohar Lohia Hospital
   (Wellington Hospital)
   Through Medical Superintendent
   R.M.L. Hospital,
   Baba Kharak Singh Marg,
   New Delhi-110001.                                  ....Respondents.

                              Through:        Nemo.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

V.B.Gupta, J.

Present appeal has been filed against judgment dated 24th September, 2007 passed

by Additional District Judge, Delhi.

2. Vide impugned judgment, petition filed by appellant under Section 278/276 of the

Indian Succession Act, 1925 (for short as „Act‟) for grant of letter of Administration with

respect to Estate left behind by Late Rameshwar Nath and his wife Smt. Kamla Wati, was

dismissed.

3. Brief facts are that Sh. Rameshwar Nath died on 7.12.1995 and Smt. Kamla Wati

died on 14.08.2004. Appellant is the real brother of Sh. Rameshwar Nath and brother in

law (Devar) of Smt. Kamla Wati. The family of appellant was living at 2680,

Chooriwalan, Delhi as a Joint Hindu Family, which included his father, real uncle Sh.

Ram Nath and brother Sh. Rameshwar Nath. Sh. Ram Nath, uncle of appellant was

issue-less and therefore out of love and affection towards the elder male child Sh.

Rameshwar Nath, he made a desire to treat Sh. Rameshwar Nath as his son so as to give

him the name of the father and to perform social rituals as a son. There was no severance

from the family of birth and up bringing and custody of Sh. Rameshwar Nath was never

given, as his custody remained with his natural mother Smt. Bhagwati Devi, who brought

him up. No adoption deed was ever executed/registered nor any ceremonies regarding

adoption were performed. With mutual understanding, Sh. Ram Nath started treating Sh.

Rameshwar Nath as his son. He was taken by him in the family business as one of the

partners. Some of the properties were purchased by Sh. Rameshwar Nath in his name

and in the name of his wife Kamla Wati from the joint family and joint family business

funds.

4. In 1954-55, Sh. Rameshwar Nath started showing serious mental illness. Thus, in

the year 1961, Sh. Ram Kishan Dass, natural father applied to the court of District Judge

for the appointment of guardian and manager of Sh. Rameshwar Nath, who was declared

to be lunatic by the doctors. The petition was contested by Smt. Kamla Wati, wife of Sh.

Rameshwar Nath. Vide orders dated 12.03.1963, Sh. P.P.R. Sawhney, the then District

Judge, appointed Sh. Ram Kishan Dass as the guardian and manager for lunatic Sh.

Rameshwar Nath. The appointment of guardian and manager was upheld by the High

Court of Punjab, having its Bench at Delhi.

5. In year 1965, Smt. Kamla Wati started illegally mismanaging the property bearing

No. E-49, Kamla Nagar, New Delhi by usurping the rent and letting out the properties,

belonging to Sh. Rameshwar Nath. Sh. Ram Kishan Dass therefore filed Suit No.634/66

for possession of house No.E-49, Kamla Nagar, New Delhi and for rendition of accounts

against Smt. Kamla Wati, wife of lunatic Sh. Rameshwar Nath before this Court. During

proceedings, an understanding was arrived at between Sh. Ram Kishan Dass, father of

Sh. Rameshwar Nath and his wife Smt. Kamla Wati and it was decided amongst the

father and wife of Sh. Rameshwar Nath to make arrangements in the form of family

settlement, required to be endorsed and enforceable in the form of a decree and as such

this Court, vide order dated 01.10.1973 passed decree in Suit No.634/66 in terms of the

family settlement. Clause-XI of the family settlement reads as under:

"Clause-XI

That after the death of Rameshwar Nath, plaintiff and Kamla Devi, defendant, the respective properties shall go to

charity to Willingdon Hospital, New Delhi for the treatment of mentally infirm persons."

6. Sh. Ram Kishan Dass expired in the year 1990. Appellant applied for

appointment as guardian and Manager of Rameshwar Nath in place of Sh. Ram Kishan

Dass. Vide order dated 23.10.1981, District Judge, appointed appellant as guardian and

manager of lunatic Sh. Rameshwar Nath.

7. Appellant in his petition stated that he has succeeded to the estate of the deceased

under the Hindu Law of Succession. Clause-XI of family settlement transferring the

properties after death, to charity to Willingdon Hospital being illegal and void ab-initio

has no legal force and after the death of the deceased, the property vests in him. It is also

stated that clause-XI involves the transfer of expectancy rights of appellant as heir of the

deceased. The same is prohibited under Section 6 (a) of Transfer of Property Act and as

such, is illegal, void and not binding on the parties. The contents of clause-XI are

extraneous to the subject matter of the suit and Willingdon Hospital was not a party to the

family settlement and therefore, clause-XI is redundant, ineffective and void and has no

force of law. It does not form part of the decree. Further, the manager had no permission

to transfer or devolve the properties of Sh. Rameshwar Nath, as no prior permission was

obtained and therefore, is barred by the provisions of Section 30 of Guardianship

&Wards Act as well a Section 78 of the Indian Lunancy Act.

8. It was further stated that clause-XI is void being repugnant and therefore, confers

no title on respondents No.2 & 3. The property passes on the appellant, being real

brother of Rsmeshwar Nath and brother in law of Smt. Kamla Wati, as per the law of

inheritance and Succession. As the family properties belong to Sh. Rameshwar Nath and

deceased Kamla Wati and as such the property is now reverted back to the family of the

husband i.e. agnates/legal heirs of husband and devolved upon appellant, who is Class II

legal heir as well as he comes under the heritable decree of succession of kinship as

agnates of Sh. Rameshwar Nath, husband of deceased Smt. Kamla Wati.

9. Respondents filed their objections stating that present petition is not maintainable.

As per compromise in Suit No.634/66, the respective properties of Sh. Rameshwar Nath

and Smt. Kamla Wati have to go to charity to Willingdon Hospital, after their death.

Appellant has no locus standi to file the present petition, since he is not a member of the

family of late Sh. Rameshwar Nath and Kamla Wati since 1937 when Sh. Rameshwar

Nath had gone in adoption. Adoption of Sh. Rameshwar Nath has never been challenged

till date, in any court of law and therefore, appellant has no connection with the family of

late Sh. Rameshwar Nath. It is further stated that proceedings are summary in nature and

court has no jurisdiction to decide the title of the property. The court of Sh. Sanjay

Sharma, Additional Rent Controller, vide order dated 07.12.2005 held that respondents

are the only legal heirs of Sh. Rameshwar Nath. Respondents also denied that appellant

is legal heir of late Sh. Rameshwar Nath or he is entitled to succeed to the estate of the

deceased. It was also denied that clause-XI, transferring the properties after death in the

charity of Willingdon Hospital, is illegal and void ab-initio. The compromise decree

passed by this Court has attained finality and is binding on the parties.

10. Notice of this appeal was issued to the respondents. All the respondents were

duly served. Initially, counsel for respondents No.2 & 3 appeared, but later on he

absented and respondents were proceeded ex-parte.

11. It is contended by learned counsel for appellant that clause-XI of the Family

Settlement Deed/Family Arrangement is illegal, as the same is in the nature of

transferring the immovable properties of Joint Hindu Family, that too to a stranger.

12. Another contention is that father of Sh. Rameshwar Nath as guardian, filed a suit

against Smt. Kamla Wati for possession. That suit was decreed by this Court, in terms of

settlement dated 21st September, 1973. This settlement clearly provides that parties were

given limited interest for life time to get rent only, keeping in view that the property was

family property. The contents of clause-XI being extraneous to the subject matter of suit

for possession of family property and Willingdon Hospital was not party to the family

settlement. Clause-XI is thus redundant, void and has no force of law. Further, clause-XI

of family settlement in suit was a nullity as this clause was beyond the subject matter of

the suit.

13. Another contention is that, law of inheritance of properties of Joint Hindu Family

is governed by the provisions of the Act and Schedule (III) of the Act, specifically

provides for restrictions and modifications. It provides that "a Hindu is not authorized to

bequeath property which he/she could not have alienated inter-vivos".

14. It is further contended that trial court ignored the fact that both Rameshwar Nath

and Smt. Kamla Wati, were given life time interest in the properties, restricted in joint

family properties its enjoyment personally for their life time and as such it cannot be

transferred by them in any manner at any time. Deceased had no authority to give away

the family properties during their life time and had no right to devolve family properties

by way of will, testament or otherwise as per family settlement.

15. In support of its contentions, learned counsel for appellant cited following

judgments;

(i) Sunita Shivdasani v. Geeta Gidwani, 2007 R.L.R 377;

(ii) Abhay Sapru v. Chitralekha Bakshi & Anr., 2008 (102) DRJ 744;

(iii) Syed Shah Gulam & Ors. v. Syed Shah Abdul & Ors., AIR 1959A.P. 212;

(iv) Gram Panchayat of Village Naulakha v. Ujagar Singh & Ors., AIR 2000 SC 3272;

(v) Tribeni Mishra & Ors. v. Rampujan Mishra & Ors., AIR 1970Patna 13;

(vi) Baldeo Jha and Ors v. Ganga Prasad Jha & Ors., AIR 1959 Patna 17;

(vii) Dodda Subbareddi v. Gunturu Govindareddi, AIR 1955 Andhra 49;

(viii) Gurdev Singh & Ors. v. Kehar Singh & Ors., AIR 1982 Punjab & Haryana 289;

(ix) Lala Babu Ram v. Smt. Kishen Devi, AIR 1963 Allahabad 509 and;

(x) Bishunath Tewari & Ors. v. Mst. Mirchi, AIR 1955 Patna 66.

16. Trial court framed following issues in the matter;

"(1) What is the effect of clause XI of the Compromise Deed/petition under Order 23 Rule 3 read with Section 151 CPC dated 21.09.1973 executed between Sh. Rameshwar Nath through his next friend Sh. Ram Kishan Dass and Smt. Kamla Wati? Onus placed upon parties.

(2) Whether the petitioner has no locus standi to file the petition in view of preliminary objection No.2? OPR (3) Whether the petitioner is entitled for letter of administration in respect of all the properties of deceased Sh. Rameshwar Nath? OPP"

17. All the above issues were decided against the appellant.

18. On Issue No.2, trial court gave the following finding;

"Even this argument is not available to the petition in view of my findings on Issue No.1 that after the death of Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital for the treatment of mentally infirm persons in terms of clause-XI of the compromise deed dated 21.11.1973. Therefore, petitioner has no locus standi to file the present petition. Issue No.2 is decided accordingly."

19. The foremost question which arises for consideration is, as to whether appellant

has got any locus standi to challenge the family settlement. Appellant has to show that

there is any violation of his legal right or legally protected interest by the family

settlement.

20. Case of appellant is that he has succeeded to the estate of deceased under Hindu

law of Succession and clause-XI of family settlement transferring the properties after

death, to charity to Willingdon Hospital is illegal and void ab-initio and has no force. His

further case is that after the death of deceased, the property vests in him.

21. On the other hand, case of respondents before trial court was that, the appellant

has no locus standi to file the petition as he has ceased to be the member of the family of

Rameshwar Nath and Kamla Wati since 1937 when Rameshwar Nath had gone in

adoption to Sh. Ram Nath. After adoption, the person severs all rights and lien from the

family of birth. The appellant thus, has no connection with the family of late Sh.

Rameshwar Nath.

22. Admittedly, appellant was not a party to the family settlement. Under these

circumstances, he had no locus standi to challenge the family settlement or its clause-XI.

23. It has been laid down in S.P. Gupta and ors. v. President of India and ors. AIR

1982 SC 149;

"The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress."

24. Trial court in this regard observed;

"Sh. Ram Kishan Dass, natural father of Rameshwar Nath was appointed as guardian of the person of Rameshwar Nath and manager of his properties vide judgment dated 12.03.1963 Exb.PW-1/3 passed by the then learned District Judge Sh. P.P.R. Sawhney. The learned District Judge has quoted from the application of Ram Kishan Dass that Rameshwar Nath had been given in adoption to Ram Nath in 1937. The averment made in the application of Ram Kishan Dass proves the fact of giving of Rameshwar Nath in adoption to Ram Nath. In order dated 23.10.1991 in

Miscellaneous Case No.1/1990 passed by the then learned District Judge Sh. P.K. Jain, it has been quoted from the testimony of the present petitioner that Rameshwar Nath was given in adoption to his uncle in the year 1937 and he has no interest adverse to the interest of Rameshwar Nath. He further gave the statement that he has no right to succeed or to inherit the property of Rameshwar Nath since he has been given in adoption. Passing of the judgment or giving such a statement in court is not disputed. There has been no challenge to the adoption till date by anyone till the death of Rameshwar Nath. Petitioner cannot be allowed to take contrary or alternative pleas, once it has been accepted and admitted by him that Rameshwar Nath was given in adoption. He cannot be allowed to retract from the statement which he gave in earlier proceedings. Any evidence led to the contrary by the petitioner is therefore not acceptable. I, therefore, refuse to believe that it was only a formal family arrangement and not adoption of Rameshwar Nath."

25. It further observed;

"That after the death of Rameshwar Nath and Smt. Kamla Wati, their respective properties shall go to charity to Willingdon Hospital for the treatment of mentally infirm persons in terms of clause-XI of the compromise deed dated 21.11.1973. Therefore, petitioner has no locus standi to file the present petition."

26. Clause-XI of family settlement reproduced as above, in unequivocal terms states

that after death of Rameshwar Nath and Kamla Wati, the respective properties shall go to

charity to Willingdon Hospital, New Delhi, for the treatment of mentally infirm persons.

27. There is no material on record to prove these assertions of the appellant that

decree dated 1st October, 1973 was obtained by playing fraud on court. Nor there is any

evidence to show that clause-XI of the compromise is unlawful. Under these

circumstances, clause-XI of the compromise deed dated 21st September, 1973, that after

the death of Sh. Rameshwar Nath and Smt. Kamla Wati, their respective properties shall

go to charity to Willingdon Hopital, New Delhi for the treatment of mentally infirm

persons is enforceable.

28. Since appellant has no locus standi in the matter to challenge the clause-XI of the

family settlement, there is no need to dwell on the other contentions raised by learned

counsel for the appellant. None of the judgments cited by learned counsel for appellant,

are applicable to the facts of the present case. The trial court rightly dismissed the

petition filed by appellant on the ground that he has no locus standi to file the petition.

29. There is no reason to disagree with the findings given by the trial court. There is

no infirmity or ambiguity in the impugned judgment. The present appeal, under these

circumstances, is not maintainable and same is hereby dismissed with costs of

Rs.25,000/-.

30. Appellant is directed to deposit the costs with Registrar General of this Court,

within six weeks from today, failing which he shall recover the same in accordance with

law.

31. List for compliance on 3rd February, 2010.

18th December, 2009                                                        V.B. GUPTA, J.
RB