Delhi High Court

Smt Shakuntala Devi & Ors vs Shri Kulbhushan Lal & Ors on 4 September, 2009

Author: Rajiv Sahai Endlaw

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS(OS) 2400/1990

%                       Date of decision: 4th September, 2009

SMT SHAKUNTALA DEVI & ORS                               ....Plaintiffs
                         Through: Mr. Saiful Islam, Advocate for the
                                  plaintiffs 1 and 2.
                                  Mr Surinder Anand, Advocate for the
                                  Plaintiff No.3 with Mr. M.M. Ranade,
                                  husband of the plaintiff No.3.

                                 Versus

SHRI KULBHUSHAN LAL & ORS                             ... Defendants
                         Through: Mr V.K. Makhija, Sr Advocate with Mr
                                  Inderjit Sharma, Advocate for the
                                  defendant No.2 & the intervener.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.      Whether reporters of Local papers may
        be allowed to see the judgment?               No

2.      To be referred to the reporter or not?        No

3.      Whether the judgment should be reported       No
        in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The suit was filed for the relief of partition of immovable and

movable properties and for rendition of accounts. The three

plaintiffs and the defendants 3 and 4 are the sisters and the

defendants 1 and 2, their brothers. The parties had another brother,

namely, Shri Sudarshan Lal who died a bachelor and issueless. Shri

Prem Prakash Sharma, the son of the defendant No.2, claims that

the said Shri Sudarshan Lal has left a Will in his favour. He had filed

Probate Case No. 34/1988, i.e. before the institution of the present

suit, in this court with respect to the said Will of Shri Sudarshan Lal.

However, the plaintiffs did not implead the said Shri Prem Prakash

Sharma as a party to the present suit though under the Will of Shri

Sudarshan Lal set up by the said Shri Prem Prakash Sharma, the

share in the properties of Shri Sudarshan Lal which the plaintiffs

claimed to have devolved upon the parties to the suit because of the

intestacy of the said Shri Sudarshan Lal, was bequeathed to the said

Shri Prem Prakash Sharma. The said Shri Prem Prakash Sharma

after the conclusion of the evidence in this suit, filed

IA.No.7172/2005 for being impleaded as a party. It was the case of

the said Shri Prem Prakash Sharma that since the plaintiffs were

contesting the probate case filed by him, he had not earlier applied

for impleadment; that the said probate case was vide judgment dated

2nd March, 2005 decided in his favour; the plaintiff No.2 herein Smt

Swaran Lata preferred FAO(OS) 103/2005 which had also been

dismissed vide order dated 18th August, 2005. However, this court

vide order dated 25th April, 2008 did not allow the said Shri Prem

Prakash Sharma to be impleaded as a party, for the reason of the

application having been filed belatedly, though he was allowed to

intervene in the present case. In these circumstances the senior

counsel for the said Shri Prem Prakash Sharma was also heard.

2. The case of the plaintiffs in the plaint is that the father of the

parties, namely, Shri Bakshi Ram was prior to 1947 settled and living

in Qila Sheikupura which fell in Pakistan; the said Shri Bakshi Ram

had a Joint Hindu Family and was running business, of petrol pump

and as a contractor and had several properties; Shri Bakshi Ram was

the karta of the said Joint Hindu Family in the name and style of

Bakshi Ram & Sons and was also carrying on businesses in the said

name which was a Joint Hindu Family Firm; the said Shri Bakshi

Ram upon coming to India lodged claims with the Ministry of

Rehabilitation and in the applications submitted also it was stated

that the same were on behalf of the Bakshi Ram & Sons, Joint Hindu

Family, through Bakshi Ram Karta.

3. It is further the case of the plaintiffs that Burmah Shell

Company allotted a petrol pump at Badarpur, Tehsil Mehrauli ,

Delhi to the said Joint Hindu Family Firm in lieu of the petrol pump

left behind in Pakistan. It was further averred that one kutti

machine at village Azadpur Delhi belonging to the custodian of

Evacuee Properties was also allotted to the said firm on rental basis;

he was also acting as a contractor of rehra stand at Farash Khana,

G.B. Road, Delhi. It is further the case of the plaintiffs that the said

Shri Bakshi Ram in lieu of his compensation claim acquired house

No. XVI/138/323, Joshi Road, Karol Bagh, New Delhi.

4. The said Shri Bakshi Ram died intestate on 10th February, 1960

whereafter Shri Sudharshan Lal aforesaid is stated to have started

acting as a karta of the family till his own death in 1987. The wife of

Shri Bakshi Ram, namely, Smt Chanan Devi died on 3rd August, 1978.

5. The plaintiffs plead that over the years other properties were

acquired from the income of the Joint Hindu Family firm, namely, i)

a plot admeasuring 5 bigha 1 biswas in village Tuglakabad, Tehsil

Mehrauli, ii) plot No. B-43, Friends Colony, New Delhi, iii) plots of

land bearing Khasra Nos.38/28/1, 38/28/2 & 38/28/3 in village

Badarpur, Tehsil Mehrauli, Delhi, iv) plot measuring 2 bighas 16

biswas in Khasra No.231 at village Tajpaul, Tehsil Mehrauli, Delhi, v)

yet another plot measuring 15 bighas in Khasra No. 36/28/2 & 29/2

also in village Badarpur Teshil Mehrauli and vi) house No. II-K/44,

Lajpat Nagar, New Delhi where Shri Bakshi Ram was stated to be

residing at the time of his death. It is further the case in the plaint

that the said Joint Hindu Family was also carrying on businesses in

the name of, a) Auto Grit at Tuglakabad, Tehsil Mehrauli, b) Auto

Rink at Badarpur, Tehsil Mehrauli, c) Auto Rest also at Badarpur, d)

Auto Yard on Mathura Road, e) BE AR Sales at Badarpur, f) Sharma

and Company at Badarpur. The family was also alleged to be having

bank accounts, fixed deposits and jewellery.

6. The plaintiffs claiming to be the class I heirs, under the Hindu

Succession Act, of Shri Bakshi Ram and Smt Chanan Devi claimed to

be entitled to 1/7 equal share each in the aforesaid properties of

Joint Hindu Family. It was further claimed that since Shri Sudarshan

Lal had died intestate as a bachelor, the plaintiffs and the

defendants were also his legal heirs. The plaintiffs claimed to have

demanded partition vide legal notice dated 26th April, 1990 and

averring that the defendants 1 and 2 had failed to respond to the

same, the suit was filed for partition of the aforesaid properties and

for rendition of accounts.

7. The defendants 1 and 2 alone filed the written statement. The

defendants 3 and 4 failed to appear and were ordered to be

proceeded against ex parte. The defendants 1 and 2 in their written

statement pleaded:

i. that the plaintiffs were not members of the Joint Hindu Family and were married prior to the coming into force of the Hindu Succession Act and were thus not entitled to any share;

ii. that after the demise of Shri Bakshi Ram on 10th February, 1960, on 21st February, 1960 all the members of the Joint Hindu Family had assembled at the Kriya ceremony and had agreed to severe the Joint Hindu Family; the plaintiffs were party to such agreement and were estopped from questioning the validity and legality of the partition after a lapse of 30 years; it was pleaded that the suit is barred by time;

iii. that as per the aforesaid settlement, the plaintiffs relinquished their rights in the house at Joshi Road, Karol Bagh vide registered document in favour of Shri Sudarshan Lal; the plaintiffs had concealed the said facts and were for this reason not entitled to any relief;

iv. that the petrol pump in Pakistan belonged not to the Joint Hindu Family but to the partnership firm of Shri Bakshi Ram, Shri Sudarshan Lal and the defendant No.1; else the existence of Joint Hindu Family in the name and style of Shri Bakshi Ram & Sons of which Shri Bakshi Ram was the karta was admitted;

v. that the claims for properties left in Pakistan were also preferred in the name of four co-sharers i.e. Shri Bakshi Ram and his three sons who constituted members of the Joint Hindu Family having 1/4th share each;

vi. the petrol pump dealership at Badarpur was of a partnership firm of M/s Bakshi Ram & Sons of Shri Bakshi Ram and his three sons and not of the Joint Hindu Family; upon the defendant No.2 joining government service he ceased to be the partner; upon the demise of Shri Bakshi Ram the said partnership firm stood dissolved and Burmah Shell removed all its equipment and vacated the site;

vii. the kutti machine and rehra stand were denied and in any case it was contended that the same were no longer in existence;

viii. at the time of demise of Sh. Bakshi Ram, the joint family properties comprised only of, a) house at Joshi Road, b) Plot No.43 comprising of Khasra No.36/28/2 and 36/29/2 at village Badarpur and c) land in Khasra No.32/28/1 and 32/28/2 at village Badarpur;

ix. with respect to the house at Joshi Road, Karol Bagh it was stated that the same was acquired against compensation payable to Shri Bakshi Ram and his three sons, in the name of

Shri Bakshi Ram.; on the demise of Shri Bakshi Ram the three plaintiffs and the defendants 1, 2 and 3 relinquished their rights in the said house in favour of Shri Sudarshan Lal vide registered deed; similarly, the defendant No.4 through her attorney, defendant No.2, also relinquished her right in the said house vide another registered deed in favour of Shri Sudarshan Lal; the said property was thus mutated in the name of Shri Sudarshan Lal in the records of the MCD and DDA and under the Will aforesaid, Shri Sudarshan Lal bequeathed the said property to Shri Prem Prakash Sharma aforesaid;

x. with respect to the plot No.43 (bearing Khasra No.36/28/2 & 36/29/2) at Badarpur, it was stated that the same was acquired by Shri Bakshi Ram from Ministry of Rehabilitation against the claims; upon the demise of Shri Bakshi Ram and dissolution of the Joint Hindu Family the said plot vested in the mother of the parties Smt Chanan Devi. Smt Chanan Devi had in or about the year 1960 filed a suit in the court of Senior Sub-Judge, Delhi with respect to the plot No.43 seeking declaration of her rights as owner and Bhumidar thereof and on the statement of her three sons a decree for declaration was passed declaring her to be the owner and Bhumidar of the said lands; the said lands were also mutated in her name in the revenue records;

xi. With respect to the plot in Khasra No.32/28/1 & 32/28/2, it was stated that the same in the family settlement aforesaid vested in the three sons of Shri Bakshi Ram and also mutated in their names;

xii. that in the dissolution of HUF, three brothers had agreed to pay Rs 10,000/- to each of the sisters and which stood paid;

xiii. that since September, 1958 all the brothers had been residing separately; it was denied that any of the businesses were of the Joint Hindu Family;

xiv. with respect to the land admeasuring 5 bighas and 1 biswas in Tuglakabad it was stated that the same had been acquired by Shri Sudarshan Lal out of his own personal fund and vide registered sale deed dated 11th June, 1960 and Shri Bakshi Ram and Sons had nothing to do with the said land; Shri Sudarshan Lal had leased out a part of the plot to Burmah Shell for the petrol pump and the petrol pump in the name and style of BE-AR Sales (Auto Grit) was functioning there since 1961 in partnership, by Shri Sudarshan Lal and the Defendant No.1; subsequently Shri Prem Prakash Sharma joined the said firm. It was denied that the petrol pump (Auto Grit) belonged to Shri Bakshi Ram and Sons; it was further averred that the land underneath the same was acquired and Shri Sudarshan Lal had filed a writ petition in this court challenging the said acquisition; during the pendency of the writ petition Shri Sudarshan Lal expired and Shri Prem Prakash Sharma was substituted in his place;

xv. Shri Sudarshan Lal had with his own monies in the year 1968 acquired the land measuring 2 bighas and 10 biswas at village Tehkhand and the sale deed thereof was in his name only and was his exclusive property; the same was acquired and in lieu thereof plot No. B-43 Friends Colony, New Delhi was allotted to Shri Sudarshan Lal;

xvi with respect to the land in Khasra No.32/28/1 & 32/28/2 in village Badarpur it was stated that though the same belonged to Shri Bakshi Ram but on his demise were mutated in the name of his three sons under the provision of the Delhi Land Reforms Act; the said lands were acquired and the said acquisition was also challenged by the three sons only of Shri Bakshi Ram;

xvii that there was no land bearing Khasra No.32/28/3 described by the plaintiffs;

xviii. with respect to the land measuring 2 bighas 16 biswas in Khasra No.231, village Tajpaul, Tehsil Mehrauli it was stated that it was the exclusive property of Shri Sudarshan Lal

acquired in 1957 and that in 1968 Shri Sudarshan Lal had formed HUF in the name and style of Bakshi Ram and Sons and was its karta.

xix with respect to the house at Lajpat Nagar it was stated that it was in the tenancy of the defendant No.2 since 1958; it was averred that the said house was purchased by Shri Prem Prakash Sharma vide sale deed dated 10th August, 1989; the said house is since informed to have been sold;

xx BE-AR Sales was stated to be a partnership of Shri Sudarshan Lal and the defendant No.1 and it was stated to be carrying on business in the name and style of Auto Rest, Auto Rink and Auto Grit; subsequently Shri Prem Prakash Sharma was also stated to have joined the said partnership. The petrol pump Auto Yard was stated to be the sole proprietary of the defendant No.2 since April, 1966 and which had been converted into a partnership firm of the defendant No.2 and his wife since February 1987. The existence of any firm in the name and style of Sharma and Company was denied.

8. The plaintiffs filed a replication. On 8th September, 1994 the

following issues were framed:

"1. Whether plaintiffs 1 and 2 have any subsisting right and interest in the Joint Family Property despite their marriages in 1994 (1944) and 1951 respectively? OPP

2. Whether plaintiffs have a right to sue for partition of Joint Family Property?

3. Whether the suit is barred by time under Article 113 of the Limitation Act? OPD1D2

4. Whether there was serverance of status of Joint Hindu Family of Bakshi Ram & Sons on 21.2.60? OPD1D2

5. What properties were held by Bakshi Ram & Sons at the time of death of Sh. Bakshi Ram on 10.2.60 OPP

6. What was the share of Bakshi Ram in the Joint Family Property at the time of his death? OPP

7. To what share of the share of late Shri Bakshi Ram in the Joint Family Property is each plaintiff entitled? OPP

8. Whether the plaintiffs who alongwith defendant No.4 relinquished their right/claim over house No.XVI/318 and 323, Joshi Road, Karol Bagh, New Delhi, in favour of their brother Sudarshan Lal under registered documents can still lay claim over that house? OPP

9. Whether the plaintiffs can claim any share in lands bearing khasra Nos.32/28/1 and 32/28/2 which were mutated on the death of Bakshi Ram in the name of his three sons under the Delhi Land Reforms Act? OPP

10. Whether the plaintiffs can claim any share in plot No.43 bearing khasra No.36/28/2 and 36/29/2 situated in village Badarpur, Delhi, which was mutated in the name of their mother Chanan Devi on 18.2.63, after she had been declared as Bhumidar? OPP

11. Whether the plaintiffs can claim a share in any other property which was purchased or acquired by defendants 1 and 2 out of their own funds after the death of their father Bakshi Ram? OPP

12. Relief."

On 11th December, 2001 the following was framed as additional issue

No. 11(A).

"11(A). Whether the suit is properly valued for the purpose of court fee and jurisdiction? If not its effect?"

9. The plaintiff No.1 examined herself as PW-1; besides

reiterating the case set-up in the plaint, she denied that there was

any division of the properties after death of Shri Bakshi Ram and

also denied having received any monies from her brother in the said

division; she however admitted that the land at Badarpur had been

transferred in the name of the mother but claimed the same to have

happened in the lifetime of the father only. She however did not

make any attempt whatsoever to prove any document in support of

her case which had been controverted by the defendants No.1&2 in

the written statement. In her cross examination, she admitted the

claim application Exhibit D-1 which was made by Shri Bakshi Ram on

behalf of Joint Hindu Family of Bakshi Ram & Sons comprising of

himself and his three sons only and describing himself and his three

sons as co-sharers; she also admitted several other documents

relating to the properties received in the claim; she admitted the

certified copy of relinquishment deed executed by her and by the

defendant No.4 with respect to share in the house at Joshi Road in

favour of Shri Sudarshan Lal but stated that the sisters have given a

Power of Attorney in favour of Shri Sudarshan Lal and not the

relinquishment deed; she denied the suggestion that she along with

the other plaintiffs had signed the relinquishment deed and received

Rs.10,000/- each; she admitted having filed the certified copy of the

plaint of the suit for declaration filed by the mother Smt. Chanan

Devi against her three sons and five daughters (in the said plaint the

mother has pleaded that during the lifetime of Shri Bakshi Ram there

was a family arrangement whereunder it had been agreed that the

house at Joshi Road will be inherited exclusively by her and had

sought declaration of her rights with respect thereto); she also

admitted the Sale Certificate of the Joshi Road house in the name of

Shri Bakshi Ram and the written statements filed by the brothers

and sisters in the suit filed by the mother giving no objection to

declaring the mother as the owner of the Joshi Road house. At this

stage, it may be recorded that there also exists on the file the

certified copies of the order sheets in the said suit which show that

the same was dismissed as withdrawn; plaintiff No.1 appearing as

PW-1 did not remember whether the lands at Badarpur had been

acquired by the government but admitted that Shri Sudarshan Lal

alone had filed the writ petition challenging the said acquisition.

10. Though the plaintiffs No.2&3 also examined themselves as PW-

2 & 3, nothing different was deposed/proved by them.

11. The defendant No.2 appeared as DW-1. He inter-alia deposed

that after the withdrawal of the suit aforesaid by the mother, all the

family members decided that the house at Joshi Road be given to

Shri Sudarshan Lal and accordingly two relinquishment deeds

proved as Exhibit P-21 & 22 were executed; he also deposed that

though the sum of Rs.10,000/- as agreed was offered to each of the

sisters, only the plaintiffs had accepted the same and the other two

sisters defendants No.3&4 had refused to accept the same; that the

plaintiffs No.2&3 had in their written statement in the suit aforesaid

filed by the mother admitted having received the sum of Rs.10,000/-;

he also deposed that only the plaintiffs were contesting the Probate

Petition filed by his son Shri Prem Prakash Sharma with respect to

the Will of Shri Sudarshan Lal and no one else had filed any

objection thereto; he also proved as Exhibit P-7 the plaint of the suit

filed by the mother with respect to plot No. 43, Badarpur (the said

suit was filed against the brothers only and not against the sisters,

the mother in the plaint in the said suit claimed that the said plot had

been gifted to her by Shri Bakshi Ram in his lifetime); he further

deposed that after the demise of the mother the said plot had been

mutated under Bhumidari Rights in favour of the three brothers

under the Delhi Land Reform Act. In his cross examination he

admitted that till the time of the partition he was a student and

denied the suggestion that no family settlement had taken place or

that in terms of the said settlement no monies had been paid to the

sisters.

12. During the pendency of the suit, the defendant No.3 died;

being ex-parte, vide order dated 11th December, 2001, her heirs were

exempted from being brought on record. The defendant No.1 also

died; vide order dated 15th January, 2004 his adopted daughter was

substituted in his place. On demise of plaintiff No.1, her heirs were

substituted on 9th January, 2007.

13. Synopsis of submissions has also been filed by counsel for

plaintiff No.3 & counsel for defendant No.2. In the aforesaid state of

pleadings and evidence, my issue-wise findings are as under.

14. However, before returning findings issue wise, it is deemed

appropriate to generally discuss the matter in controversy.

15. The plaintiffs have approached the court with the case of the

properties with respect whereto the suit has been filed being of the

Joint Hindu Family of Bakshi Ram & Sons (HUF). The contesting

defendants though admit the existence at one point of time of the

said Joint Hindu Family, contend that the same was

dissolved/partitioned 30 years prior to the institution of the suit. The

plaintiffs, in spite of demise of their father in 1960 and mother, in

the year 1978, till 1990 did not claim any share in the properties.

This litigation appears to have been ignited by Shri Prem Prakash

Sharma S/o defendant No.2, setting up a Will of Shri Sudershan Lal

in his favour. Though these proceedings are informed to have been

conclusively decided against the plaintiffs, this litigation lingers on,

though appears to have lost much of its steam.

16. The parties are also at issue as to the extent of the properties

of the said Joint Hindu Family i.e., whether all the properties with

respect whereto the suit has been filed belonged to the said Joint

Hindu Family, as contended by the plaintiffs or only some of them as

contended by the contesting defendants and if so which ones.

17. Only upon it being found that the Joint Hindu Family existed

till the institution of the suit as claimed by the plaintiffs and upon it

being determined as to which of the properties belonged to the said

Joint Hindu Family, would the question of determining the

interest/share of the plaintiffs therein would arise.

18. The plaintiffs have instituted the suit with respect to the

properties mentioned in paras 3 and 5 hereinabove. The contesting

defendants however admit only three properties, namely, i) the

house at Joshi Road, Karol Bagh, ii) Plot No.43 comprising of Khasra

No.36/28/2 and 36/29/2 at village Badarpur, and iii) the land in

Khasra No.32/28/1 and 32/28/2 at village Badarpur to be of the Joint

Family.

19. The question which arises is, whether the plaintiffs on whom

the onus in this regard rested have established any other property to

be of the joint family as on the date of institution of suit. Though the

plaintiffs have suggested that the properties which are not in the

name of the Joint Hindu Family or Sh. Bakshi Ram were also

acquired with the monies of the businesses being carried on by the

family, but there is no cogent evidence in this regard. The only

evidence in this regard before the court, to rebut the stand of the

contesting defendants of there being only three properties aforesaid

of the family at the time of demise of Shri Bakshi Ram, is Exhibit P-

20. It is a photocopy of a partnership deed dated 1st April, 1968

between the defendants No.1&2 and their deceased brother

Sudershan Lal and mother Smt. Chanan Devi. This document was

admitted by the contesting defendants and admitted into evidence on

8th March, 1995. This document records that (i) Bakshi Ram & Sons

(HUF) have been carrying on business of Petrol Pumps at various

places in the name of M/s BE-AR Sales, in the name of Auto Rest at

231, Tajpaul, Mathura Marg, Delhi, in the name of Auto Grit at

Tughlakabad, Delhi and in the name of Auto Rink at Khasra

No.32/28, Badarpur, Delhi, (ii) that the signatories, being all the

members of HUF have decided to take out the said business from the

family fold and to convert it into partnership concern w.e.f. 1st April,

1968, and (iii) the HUF of Bakshi Ram & Sons is the owner of - (a)

Plot No.231, Tajpaul, Delhi, (b) Plot at Tughlakabad, Delhi, (c) Plot

No.32/28, Badarpur, Delhi, (d) Plot No. 36/28 and 36/29 Badarpur,

Delhi and (e) House at Joshi Road, Delhi and which will remain in the

ownership of Bakshi Ram & Sons (HUF).

20. Similarly, the only other evidence before the court (besides

adverse oral testimonies) to rebut the plea of the contesting

defendants of dissolution/partition of the HUF, soon after demise of

Shri Bakshi Ram, in 1960, is Exhibit P-28, being photocopy of Civil

Writ No.1921/1986 preferred in the name of Bakshi Ram & Sons

(HUF) in this court with respect to land bearing khasra No. 32/28/1

and 32/28/2, Badarpur. In this writ petition, Shri Sudarshan Lal has

signed as the karta of the said HUF.

21. The plaintiffs have also proved as Exhibit P-24 the letter

written by Shri Sudarshan Lal for mutation of plot No. 231 village

Tajpaul, Delhi, from his name, to the name of Bakshi Ram & Sons

(HUF), in accordance with the partnership deed dated 1st April, 1968

(supra).

22. There can be no better evidence than admission. The aforesaid

documents contain admission not only of certain properties other

than the three properties admitted by the contesting defendants, to

be also belonging to the Joint Hindu Family, but the said documents

also notify the stand of dissolution of the HUF in 1960.

23. The contesting defendants have as aforesaid taken a plea that

Shri Sudarshan Lal had in 1968 formed a new HUF in the same

name and style of Bakshi Ram & Sons (HUF). However, the

defendants have failed to establish the said plea and the same is also

inconsistent to the language of Exhibit P-20 which was

contemporaneously executed.

Re. Issue No.1(Whether plaintiffs 1 and 2 have any subsisting right and interest in the Joint Family Property despite their marriages in 1994 (1944) and 1951 respectively? OPP)

24. Though Section 6 of the Hindu Succession Act, 1956 has been

amended w.e.f. 2005 but the said amendment is not relevant for the

present purposes. This suit for partition is pending since 15 years

prior to the amendment to Section 6 of the said Act. Also, the

coparcener/karta of the HUF namely Shri Bakshi Ram, whose

daughters, the plaintiffs are, died 35 years prior to the said

amendment. The rights/shares if any crystallized then only and will

not be affected by the subsequent amendment. This court in

Mukesh Vs. Sh. Bharat Singh 149 (2008) DLT 114 held the

amendment of 2005 to Section 6 of Hindu Succession Act to be not

retrospective.

25. Section 6 of the Hindu Succession Act prior to the amendment

also though recognizing Mitakshara Coparcenary provided that if the

deceased left a female heir in class-I, the interest of the deceased in

such coparcenary shall devolve in terms of the said Act. In this

regard it may be also noticed that the Division Bench of this court in

Kanhaiya Lal Vs. Jamna Devi MANU/DE/0197/1972 has held that

joint family property is synonymous with coparcenary property and it

makes no difference in construction and effect of Section 6, for the

widow and daughters are members of the Joint Hindu Family and not

of the coparcenary. Under the Hindu Law relating to

coparcener/Joint Hindu Family, the married daughters cease to have

any right/claim to the same. Thus the plaintiffs per se had no rights

in the Bakshi Ram & Sons (HUF). However, since the Hindu

Succession Act had come into force prior to the demise of Shri

Bakshi Ram and it being not the case that Shri Bakshi Ram has left

any Will, there is deemed to be a partition of the said HUF at the

moment of the demise of Shri Bakshi Ram and his share in the said

HUF would devolve according to the Succession Act i.e. on his widow

and his children equally.

26. Thus, issue No.1 is answered as that though the plaintiffs had

no subsisting right or interest in the joint family property upon their

respective marriages but they would be an heir of their father Shri

Bakshi Ram with respect to his share therein.

Re. Issue No.2 (Whether plaintiffs have a right to sue for partition of Joint Family Property?)

27. Though the plaintiffs have sued on the premise that all the

parties having equal share but it being the case of the plaintiffs that

the properties with respect whereto relief is claimed were/are of the

Joint Hindu Family, the plaintiffs in spite of having been held above

to be having no right or claim to the Joint Hindu Family, would still

have a share in the said properties as a heir under the Hindu

Succession Act of their father Shri Bakshi Ram but only out of his

share in the HUF, determined at the moment of his demise. Thus, the

plaintiffs have a right to sue for partition.

Re. Issue No.3 (Whether the suit is barred by time under Article 113 of the Limitation Act? OPD1D2)

28. The plea of limitation was set-up in the written statement of

the defendants No.1&2 averring that there was a partition of the

joint family properties immediately after the demise of Shri Bakshi

Ram in the year 1960; that in the said partition the plaintiffs were

given Rs.10,000/- each in lieu of their shares in the property; that the

suit for partition filed in the year 1990 is barred by time. However,

the defendants have failed to prove that any such partition took

place. Else, it has been found above, that the contesting defendants

admitted existence of the HUF in partnership deed of 1st April, 1968

and in Writ Petition No.1921/1986. Thus the suit for partition qua

immovable properties found to be of the HUF is not found to be

barred by limitation. The limitation for a suit for partition would

commence from the date when partition is claimed and is denied. It

thus cannot be said that the relief of partition claimed is barred by

time.

29. However, as far as the relief for partition of HUF businesses

and accounts thereof is concerned, even though in the partition deed

Exhibit P-20, certain businesses were admitted to be of the HUF, but

they were w.e.f. 1st April, 1968 i.e. nearly 22 years prior to the

institution of the suit, taken out of the fold of HUF and were

thereafter carried on in partnership, though of the members of HUF.

Be that as it may, they ceased to be of the HUF. The claim for

partition or accounts thereof is barred by limitation. The plaintiffs

have not been vigilant in this case. The businesses even if earlier of

the HUF are such an asset which cannot be static. The plaintiffs

cannot wake up after long and claim a share therein when the same

for long prior to the institution of the suit had ceased to be of HUF

and when others had been carrying on the same, treating to be in

partnership. Thus, claim qua businesses is barred by time.

Re. Issue No.4 (Whether there was serverance of status of Joint Hindu Family of Bakshi Ram & Sons on 21.2.60? OPD1D2).

30. As already observed above, the defendants have failed to prove

severance of status of the Joint Hindu Family of Bakshi Ram & Sons

on 21st February, 1960. On the contrary, there is admission of

existence of HUF in 1968 and 1986, as aforesaid.

Re. Issue No.5 (What properties were held by Bakshi Ram & Sons at the time of death of Sh. Bakshi Ram on 10.2.60 OPP)

31. Though the defendants claimed that only three of the several

properties with respect whereto suit was filed, were the joint family

properties of Bakshi Ram & Sons (HUF) but as aforesaid, the

contesting defendants in partnership deed dated 1st April, 1968

Exhibit P-20 (Supra) and with respect whereto there is no

explanation whatsoever, admitted certain other properties also to be

of Bakshi Ram & Sons (HUF). On the basis of said admission, finding

is returned of the following properties being held by Bakshi Ram &

Sons (HUF) at the time of demise of Shri Bakshi Ram:-

        a.        House at Joshi Road.

        b.        Plot No.43 comprising of Khasra No.36/28/2 & 36/29/2 at
                  village Badarpur, Delhi.

        c.        Plot of land in Khasra No.32/28/1 & 32/28/2 at village
                  Badarpur, Delhi.

        d.        Plot of land No.231, village Tajpaul, Tehsil Mehrauli,
                  Delhi.

        e.        Plot of land at Tughlakabad.

Re. Issue No.7 (To what share of the share of late Shri Bakshi Ram in the Joint Family Property is each plaintiff entitled? OPP).

32. Shri Bakshi Ram his wife and his three sons had an equal share

in the joint family properties i.e. of 1/5th each. The plaintiffs would be

entitled to a share under Hindu Succession Act out of said 1/5th share

only of Shri Bakshi Ram in the joint family properties. The said 1/5th

share would devolve upon the eight children and widow of Shri

Bakshi Ram equally. Thus each of the plaintiffs would have 1/8 th

share out of 1/5th share of Shri Bakshi Ram in the aforesaid joint

family properties.

Re. Issue No.8. (Whether the plaintiffs who alongwith defendant No.4 relinquished their right/claim over house No.XVI/318 and 323, Joshi Road, Karol Bagh, New Delhi, in favour of their brother Sudarshan Lal under registered documents can still lay claim over that house? OPP)

33. The relinquishment deeds are registered and have been

admitted by the plaintiffs. The plaintiffs in their evidence in fact

admitted the said relinquishment deed and the explanation offered

with respect thereto i.e. that they intended to sign a Power of

Attorney has not been proved and/or established. Upon execution of

the relinquishment deed, the share of the plaintiffs as aforesaid in

the Joshi Road house stood transferred to Shri Sudarshan Lal. The

counsel for the plaintiffs has also not shown anything as to how the

plaintiffs would in spite of the relinquishment deed have a share in

the said house. It is also worth mentioning that the plaintiffs in spite

of the suit having remained pending for so long have not claimed any

relief for setting aside of the said relinquishment deeds and the said

claim even if any of the plaintiffs stands barred by time.

34. Though the application of the plaintiffs being Crl.M. 481/1994

under Section 340 of Cr.P.C. with respect to the said relinquishment

deed is pending but in my view the same is immaterial. The house at

Joshi Road bears municipal No.XVI/138/318-323. It is the case of the

plaintiffs in their application under Section 340 of the Cr.P.C. that the

defendants have in the certified copy filed before the court changed

321 to 323. The plaintiffs have filed copies of the said relinquishment

deed themselves in which the municipal No. mentioned are 318 and

321. However, the same would be immaterial inasmuch as the

relinquishment deed also contains the area of the property and which is

the entire area of the property i.e., 293 sq yds and not merely the area

of the portions bearing No. 318 & 321. Thus, the change even if any

effected by the defendants in the certified copy filed by them does not

lead me to hold that the relinquishment was of a part of the said house

only. Also considering the relationship of the parties and long time for

which the parties have already been litigating, I do not find any case

under Section 340 of the Cr.P.C. also to be made out and the

application in that regard is also dismissed.

35. Thus I find the plaintiffs to have relinquished their share in the

Joshi Road house.

Re. Issue No. 9.(Whether the plaintiffs can claim any share in lands bearing khasra Nos.32/28/1 and 32/28/2 which were mutated on the death of Bakshi Ram in the name of his three sons under the Delhi Land Reforms Act? OPP)

36. The senior counsel for the intervener has contended that the land in

khasra No. 32/28/1 and 32/28/2 with respect whereto only this issue has

been framed, is governed by the provisions of the Delhi Land

Reforms Act; that the said land was recorded in the name of Shri

Bakshi Ram as Bhumidar thereof; that on demise of Shri Bakshi Ram

the said land was mutated in the names of the three sons of Shri

Bakshi Ram. The said mutation is sought to be proved through

Exhibit P-17 and Exhibit P-19. Upon execution of the partnership

deed dated 1st April, 1968 Exhibit P-20 (supra), the said land was

mutated from the names of Shri Sudarshan Lal and the defendants 1

and 2, to the name of M/s Bakshi Ram and Sons, (HUF). Thus, the

Civil Writ No.1921/1986 Exhibit P-28 challenging the validity of

acquisition of the said land and which is stated to be still pending

was filed in the name of M/s Bakshi Ram & Sons, (HUF). The

contention is that the mutation in accordance with provisions of

Section 50 of the Delhi Land Reforms Act having been carried out in

the names of Shri Sudarshan Lal and defendants 1 and 2, the

plaintiffs or the defendants 3 and 4 have no share in the said land

even if held to be of the HUF.

37. The counsel for the plaintiffs has not disputed the applicability

of the provisions of the Delhi Land Reforms Act to the land.

However, he has argued that since the said lands were being used,

not for agricultural purposes, but for the purposes of a petrol pump,

they under Section 23 of the said Act ceased to be governed by the

provisions of the Delhi Land Reforms Act. It is orally also argued

without producing any documents that the said lands were urbanized

in 1959 and thus also ceased to be governed by the Delhi Land

Reforms Act and the inheritance with respect thereto shall be

governed by the Succession Act and not the Land Reforms Act.

38. The Division Bench of this Court in Ram Mehar Vs Dakhan 9

(1973) DLT 44 has held that as the Delhi Land Reforms Act provides

for the prevention of the fragmentation of agricultural holdings and

also, at the material time fixed ceilings on agricultural holdings and

also dealt with the devolution of tenancy rights (bhumidari rights) in

respect of such holdings, it is saved by Section 4(2) of the Hindu

Succession Act and the rule of succession governing Hindu

Bhumidars is to be found in Section 50 of the Delhi Land Reforms

Act and not in the Hindu Succession Act, 1956. On the basis of the

said dicta, even though the said land is established to be the

property of the Joint Hindu Family of Bakshi Ram & Sons at the time

of demise of Shri Bakshi Ram but the plaintiffs under the provisions

of the Hindu Succession Act also would not get a share therein.

39. The Supreme Court Subsequently in Madhu Kishwar Vs

State of Bihar (1996) 5 SCC 125 appears to have dealt with the

subject of such inheritance under laws as the Delhi Land Reforms

Act, to males only. However, since Shri Bakshi Ram died long prior

to the said dicta of the Supreme Court also and further since

mutation in accordance with Delhi Land Reforms Act were carried

out in the names of Shri Sudarshan Lal and the defendants 1 and 2

only, in my view the said dicta of the Supreme Court also does not

come to the rescue of the plaintiffs.

40. As far as the arguments of the counsel for the plaintiffs of the

said land having been urbanized and thus the provisions of Section

50 of the Delhi Land Reforms Act ceasing to apply to succession

thereof is concerned, this court recently in Narain Singh Vs

Financial Commissioner 2009 (1) AD (Delhi) 695 after review of

the earlier judgments including in Trikha Ram Vs Sahib Ram 1997

(43) DRJ 669, to which reference has been made by the contesting

defendants in another context, has held that the urbanization of the

land by a notification under Section 507 of the Delhi Municipal

Corporation Act, 1957 would not stop the provisions of the Delhi

Land Reforms Act applying to such lands. Thus, the said argument is

of no avail.

41. The counsel for the plaintiffs has also referred to Section 23 of

the Delhi Land Reforms Act. However, the same only prohibits use

of the land covered by the said Act for industrial purposes and

enables the Chief Commissioner to sanction use of the land by a

Bhumidar for industrial purposes with a proviso that, upon the same

happening, the provisions of the said Act relating to devolution shall

cease to apply to the bhumidar with respect to such land. However,

in the absence of it having been established that the use of the land

for petrol pump which is stated to be the non-permitted use has been

sanctioned by the Chief Commissioner, Section 23 would have no

application.

42. However, the said land was in partnership deed dated 1st

April, 1968 Exhibit P-20 (supra) admitted to be of HUF and is now

again mutated in the name of Bakshi Singh & Sons, (HUF). On said

admission, plaintiffs will have a share therein.

43. While on the subject and since it has come on record that the

land has been acquired and the acquisition is challenged in Civil Writ

No.1921/1986 pending in this court, I may also notice that this court

in Jai Prakash Vs Smt Pushpa 81 (1990) DLT 519 has held that the

provisions of Section 50 of the Delhi Land Reforms Act relating to

succession have no application where the land has been acquired

and qua the entitlement for compensation under the Land

Acquisition Act.

44. Though issue No. 9 has been framed with respect to the land in

Khasra No.32/28/1 and 32/28/2 only but since I have hereinabove

held that the land in Village Tajpaul and the land in Tuglakabad also

are part of the Joint Family Property, it is necessary to deal with

respect to the said lands also, qua the Delhi Land Reforms Act.

45. The land in village Tajpaul was originally in the name of Shri

Sudarshan Lal only. However, Shri Sudarshan Lal in the partnership

deed dated 1st April, 1968 Exhibit P-20 (supra) admitted the same to

be of Bakshi Ram & Sons, (HUF) of which Shri Bakshi Ram was the

karta. The said land is mutated in the name of Bakshi Ram & Sons,

(HUF) as of today. Since the land is mutated in the name of the

HUF, the plaintiffs would have a share in the said land, irrespective

of provisions of Delhi Land Reforms Act.

46. With respect to the land at Tuglakabad, the plea in the written

statement is that the same was acquired by Shri Sudarshan Lal.

However, Shri Sudarshan Lal in partnership deed dated 1 st April,

1968 Exhibit P-20 (supra) admitted the same to be of Bakshi Ram &

Sons, (HUF) of which Shri Bakshi Ram was the karta. Thus, the

plaintiffs would have a share in the said land also out of the share in

the said land of Shri Bakshi Ram at the time of his demise,

irrespective of provisions of Delhi Land Reforms Act.

Re: Issue No.10 - Whether the plaintiffs can claim any share in plot No.43 bearing khasra No.36/28/2 and 36/29/2 situated in village Badarpur, Delhi, which was mutated in the name of their mother Chanan Devi on 18.2.63, after she had been declared as Bhumidar? OPP

47. The plot No. 43 bearing Khasra No 36/28/2 and 36/29/2 is

also now established to be of the Bakshi Ram & Sons, (HUF) at

the time of demise of Shri Bakshi Ram. However, the case of the

contesting defendants is that in the settlement/partition of the

HUF after the demise of Shri Bakshi Ram, the said property

vested in the mother. This plea of the contesting defendants of

settlement/partition has not been accepted by this court.

However the factum of the said property having been mutated in

the name of the mother stands admitted and established. Though

the defendants have urged that after the demise of the mother,

the said land has also been mutated in their names under the

provisions of the Land Reforms Act but that mutation is of a date

after the institution of this suit and would be of no avail. It is also

informed that the plaintiffs have also got mutated their names,

with respect to the said land, in the revenue record and challenge

whereto has been made by the defendant No. 2 by filing a suit in

the court of the Civil Judge, Delhi. It is the contention of the

defendants on the basis of Trikha Ram (supra) that this land

was urbanized vide notification of 3rd June, 1996 and thus the

mutation by addition of the names of the plaintiffs in the said land

is bad. However, as aforesaid, the urbanization of the land, even

if any, does not stop the application of the provisions of the Delhi

Land Reforms Act. Thus, this land would continue to be governed

by the provisions of the said Act. It being the admitted position

that the mother Smt Chanan Devi was recorded as a bhumidar

with respect to the said land after the demise of Shri Bakshi Ram,

the succession with respect to the said land would be governed

by Section 51 of the Delhi Land Reforms Act and as per which,

succession again the said land would vest in the male

descendants only and the plaintiffs as heirs of Shri Bakshi Ram or

of Smt Chanan Devi would have no right to the said land. Having

said so, it must be clarified that since the dispute as to the

mutation affected in the names of the plaintiffs also with respect

to the said land is not subject matter of this suit, nothing

contained herein ought to be deemed to be adjudicating the

same.

Re : Issue No. 11 - Whether the plaintiffs can claim a share in any other property which was purchased or acquired by defendants 1 and 2 out of their own funds after the death of their father Bakshi Ram? OPP

48. In view of what has been held hereinabove, the plaintiffs can

claim a share only in the properties which were admitted in the

partnership deed dated 1st April, 1968 as properties of the HUF

and in no other properties. The position with respect to each of

the said properties had also been dealt with hereinabove.

Re: Issue No. 12 - Relief.

49. Resultantly, it is held that out of the five HUF properties, the

plaintiffs have a share only in: