Anshumalee Sood vs Sudarshana Kumari Blagan & Anr.
2010 Latest Caselaw 2084 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
4
+      CM (M) 995/2009 & CM APPL Nos. 13244/09, 6106/2010

       ANSHUMALEE SOOD                        ..... Petitioner
                   Through Mr. Ashish Mohan, Advocate with
                   Petitioner in person.

                      versus

       SUDARSHANA KUMARI BLAGAN & ANR ..... Respondents
                   Through Mr. S.S. Dhingra, Advocate for R-1.
                   Mr. K.S. Patharia, Advocate for R-2.


       CORAM: JUSTICE S.MURALIDHAR

       1. Whether Reporters of local papers may be
          allowed to see the order?                             No
       2. To be referred to the Reporter or not?               Yes
       3. Whether the order should be reported in Digest? Yes

                               ORDER

21.04.2010

1. The Petitioner is the son and sole legal representative („LR‟) of late Smt.

Devi Kumari Sood, Defendant No. 3 in Suit No. 791 of 2007 (renumbered),

which is a partition suit filed by her sister Smt. Sudarshana Kumari Blagan

the Respondent No. 1 Plaintiff way back in 1984. The Petitioner challenges

an order dated 15th July 2009 passed by the Commercial Civil Judge („CCJ‟),

Delhi whereby an application filed by the Plaintiff under Order XXII Rule 4

CPC seeking to implead the Petitioner as LR was allowed and the

Petitioner‟s application under Order 1 Rule 10 CPC seeking to implead

himself as a party Defendant in his own right was dismissed.

2. Respondent No. 1 filed the aforementioned suit for partition of the

immovable property at I-13, Jangpura Extension, New Delhi („suit

property‟) which belonged to late Shri Mela Ram Sood, the husband of

Defendant No. 1 Smt. Tulsan Devi, and the father of the Plaintiff, and

Defendant Nos. 2 and 3 Shri Din Dayal Sood and Smt. Devi Kumari Sood

respectively. Shri Mela Ram Sood died intestate on 5th September 1975.

The claim of the parties in the suit was that the suit property was his self-

acquired property. The case of the Plaintiff was that after being deserted by

her husband she was residing in the suit property along with her mother; that

Defendant Nos. 2 and 3 had relinquished their respective shares in the suit

property in their favour and were therefore not co-owners. Separate written

statements were filed by Defendant Nos. 1, 2 and 3 in the suit. Defendant

No.1, who died on 9th August 1984 soon after fling her written statement on

9th July 1984 denied that Defendant No.2 had relinquished his share in the

suit property. According to Defendant No.1 the Plaintiff and Defendant No.3

had executed relinquishment deeds giving up their rights to the suit property.

There was an oral family settlement under which each of them was paid

Rs.40,000. Defendant No.1 claimed to be the exclusive owner of the suit

property and further that only she and her son had any right to it. On his part

defendant No.2 filed a written statement on 11th December 1989 supporting

his mother‟s stand and further pleading that she had by a Will dated 25 th

January 1984 bequeathed the entire suit property to him. He denied that the

Plaintiff had been deserted by her husband and asserted that they were

having cordial relations. The Petitioner‟s mother Smt. Devi Kumari Sood

stated in her written statement filed on 15th April 1984 (purportedly amended

on 20th December 2001) stated that "the father of the Plaintiff and replying

Defendant had the property bearing No. I-13, Jangpura Extension, New

Delhi which was acquired and built by the parents of the Plaintiff and of the

Defendant Nos. 2 and 3." She further admitted to both the Plaintiff and

herself having executed relinquishment deeds but maintained that the one

executed by her was not a valid document as it was not registered. She

admitted that there had been an oral family settlement and to having

received Rs.40,000. What is important to note that nowhere was it pleaded

by any of the parties to the suit that the property was an ancestral one.

3. During the pendency of the suit Smt. Tulsan Devi died on 7 th August

1984. Defendant No. 3 Smt. Devi Kumari Sood also expired on 5 th October

2007 leaving behind the Petitioner as her sole LR entitled to succeed to her

estate. Accordingly, an application was filed by the Plaintiff under Order

XXII Rule 4 CPC to substitute Defendant No. 3 by the Petitioner. On his

part, the Petitioner independently filed an application under Order 1 Rule 10

CPC seeking impleadment as a Defendant in his own right. In this

application he, for the first time, set up a plea that the property was ancestral

and that after the amendment to the Hindu Succession Act 1956 („Act‟) by

the Hindu Succession (Amendment) Act, 2005 which came into effect on 9th

October 2005, the suit was barred under Section 23 of the Act. In his

application the Petitioner contended:

"A. That Shri Mela Ram Sood, the maternal Grand-father of the applicant, migrated from Pakistan after partition. In lieu of the properties left by him in Lahore, Pakistan and by virtue of his being a refugee, a property admeasuring about 200 square yards bearing No. I-13, Jangpura Extension, New Delhi - 110 014, a refugee colony, was allotted to late Shri Mela Ram Sood by the Land & Development Office, Government of India on long term lease basis, hereinafter referred as the suit property.

B. That Shri Mela Ram Sood died intestate on 5 th

September 1975 leaving behind his wife, two daughters namely Smt. Devi Kumari Sood (Defendant No.3, mother of the applicant). Smt. Sudershana Kumari Blagan (plaintiff) and one son Shri Din Dayal Sood (Defendant No.2). Since the property was ancestral, upon the demise of Shri Mela Ram Sood, the legal heirs mentioned herein became entitled to inherit 1/4th share each of the suit property."`

4. It was then contended by the Petitioner that the partition of the undivided

suit property "having acquired the rights in the property on the promulgation

of the Hindu Succession (Amendment) Act 2005, being the sole heir of late

Smt. Devi Kumari Sood, applicant is the only interested and necessary

party." His case was that by virtue of Section 6 of the Act as amended in

2005, his mother "has been recognized as a coparcener" and that he had

"acquired a right in the property through his mother, as the property is

ancestral." He contended that "being the son of a coparcener of the Hindu

Undivided Family" he was "entitled to partition and grant of his share in the

property held by the coparceners together." He staked a claim to the 1/3rd

share of the suit property to which his mother was entitled.

5. By the impugned order, the learned CCJ held that:

(i) There was no presumption that a property standing in the name of

a member of a joint Hindu family was the joint family property.

Reliance was placed on the decision in Ms. Rukhmabai v. Lala

Laxminarayan AIR 1960 335.

(ii) The mere fact of Shri Mela Ram being a refugee and the suit

property having been allotted by the Government of India in lieu of

his property left behind by him in Pakistan at the time of partition

would not make the suit property ancestral. The applicant had failed to

make sufficient averments in support of such claim.

(iii) Even as of the date of filing the partition suit by impleading the

other legal heirs there was a severance of status of the parties and

therefore there was a partition even prior to 20 th December 2004. In

terms of the proviso to Section 6(1) as amended that partition could

not be reopened.

(iv) Section 6 (3) referred to only a male Hindu and therefore did not

cover Defendant No.3 or her interest in the suit property.

(v) Even if it were presumed that the suit property was joint family

property, by virtue of the proviso to the unamended Section 6 of the

Act, the share of Mela Ram Sood would devolve upon the female

heirs i.e. the Plaintiff and Defendant No.3, and the petitioner as son of

a female heir, not by survivorship but by succession.

(vi) In terms of the amendment to Section 6 (1) of the Act in 2005, it

is only the daughter of a coparcener who has been bestowed with the

character of a coparcener in her independent right not her lineal

descendant as has been urged by the petitioner.

(vii) The petitioner has no independent right in the suit property

except as LR of Defendant No. 3.

6. Learned counsel for the Petitioner submits that the question whether the

property was an ancestral or joint family property or whether the plea of the

Petitioner for partition on the basis of independent right to share of such

property were all matters of evidence and cannot be gone into at the stage of

an application under Order 1 Rule 10 CPC. It is argued that the words

„coparcener‟ and „coparcenary property‟ are not defined under the Act and

therefore, whether the suit property was a joint family property or a

coparcenary property cannot be a matter of evidence.

7. This Court finds that except the petitioner, none of the parties claims the

suit property to be joint family property or ancestral or coparcenary

property. Even the Petitioner‟s case is that the property was allotted to be

Petitioner‟s maternal grandfather by the Government, after partition, in lieu

of the properties that he held in Pakistan. The suit property cannot therefore

be held to be ancestral property by any stretch of imagination.

8. The terms „joint family property‟, „ancestral‟ and „coparcenary‟ property

are not defined in the Act but have been the subject matter of decisions over

the years. Over a hundred years ago in Karsandas Dharamsey v. Gangabai

(1908) 10 Bom LR 184 Beaman, J. explained:

"(T)here must have been a nucleus of joint family property before ancestral joint-family property can come into existence. Because the word ancestral connotes descent and therefore of course pre-existence. But because it is true that there can be no joint ancestral family property without a previous nucleus of joint family property, it is not true that there cannot be joint family property without a pre-existing nucleus. For that would be identifying joint family, with ancestral joint family property. The distinctions arising under the case law between the two classes of property thus designated are well enough known, though it would be hard to find any strictly logical justification for them. Where there is ancestral joint family property, every member of the family acquires by birth an interest in it, which cannot be defeated by individual alienation or disposition of any kind. And

this, in my opinion, with respect to any judicial decisions to the contrary is equally true of joint family property... whereas in the case of joint ancestral property, members of the family acquire a right to their shares by birth ex necessitate et vi termini, in the case of merely joint-family property, the Courts have shown a very strong tendency to refuse to draw even a presumption in favour of this peculiar incident... where property is admitted or proved to have been joint family property, it is subject to exactly the same legal incidents in every respect, as property which is admitted or proved to be ancestral joint family property. Further that this class of property in India differs radically in origin and essential characteristics from the joint property of the English law." (emphasis supplied)

9. Further, it was held that

"the person alleging that it was joint family property must (in the present state of the law) show that the family was joint in food, worship, and estate, in other words that the members had shown their intention to constitute a joint family, and to hold all their property as joint family property."

10. In Gowli Buddanna v. Commissioner of Income-tax, Mysore,

Bangalore AIR 1966 SC 1523 the Supreme Court explained:

"A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners."

11. Reference was made to the judgment of the Judicial Committee in Ceylon Attorney-General of Ceylon v. A. R. Arunachalam Chettiar I.L.R. (1957) A.C. 540 where it was observed:

"The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word "owner" in this connexion. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as "joint property" of the undivided family."

12. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and

Ors. AIR 1985 SC 716 it was held:

"As observed in Mayne on Hindu Law and Usage (1953 Edn.) the joint and undivided family is the normal condition of a Hindu society. An undivided Hindu family is ordinarily joint not only in estate but in food and worship but it is not necessary that a joint family should own joint family property. There can be a joint family without a joint family property. At para 264 of the above treatise it is observed thus:

264. It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. But the Hindu coparcenary is a much narrower body.... For, coparcenary in the Mitakshara Law is not identical with coparcenary as understood in English law: when a member or a joint family dies, 'his right accrues to the other members by survivorship, but if a coparcener dies his or her right does not accrue to the other coparceners, but goes to his or her own heirs". When we speak of a Hindu joint family as constituting a coparcenary we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place; we include only those person who, by

virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation." (emphasis supplied)

13. The position in law from the above decisions is that there is a distinction

between a joint Hindu family and joint family property. The existence of the

former does not automatically mean that the latter exists. For there to be a

coparcenary property it must be established that persons linked by a

common descent have a right to the joint property of the coparcenary by

birth. In other words, only those persons who acquire by birth an interest in

the joint or coparcenary property are stated to be coparceners entitled to

enforce such rights. Mayne explains that it is not all persons who trace

themselves to a common ancestor who are coparceners but "only those

person who, by virtue of relationship, have the right to enjoy and hold the

joint property, provided the property has not been partitioned." The burden

to show that the property was a joint family property was on the person

laying such claim.

14. The above position was given statutory form in Section 6 of the Act prior

to its amendment in 2005 when it read as under:

"6. Devolution of interest in coparcenary property - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparceners property, his interest in the property shall devolve by survivorship upon the surviving members of the coparceners and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparceners property shall devolve by testamentary

or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1 - For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2 - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparceners before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

15. Thus even under the unamended Section 6 where prior to a partition a

male died leaving behind a surviving female relative specified in Class I of

the Schedule or a male relative specified in Class I who claims under such

female relative, the interest of the deceased in the coparcenary property was

to devolve not by survivorship but by succession. There was a deeming

fiction of a partition on the date of death of such coparcener. If such male

relative had separated himself before his death from his coparceners then no

such claim by his female relative or a male claiming under her would lie.

This principle of the devolution only by succession of the share of a male

coparcener who dies before a formal partition has taken place has been

retained in the amended Section 6 which reads as under:

"6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparceners property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparceners property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a

reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparceners ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparceners property shall be deemed to have been divided as if a partition had taken place and, --

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased so or a pre-deceased daughter, as the case may be.

Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court."

16. The change brought about by the 2005 amendment to the Act is to

recognize the daughter as a coparcener on par with a son. However, this was

not meant to accord the status of a coparcener to the lineal descendants of

the daughter. Section 6 (3) of the Act retains that portion of the unamended

law as to what should happen to the share of the male coparcener, who dies

after the coming into force of the Act (as amended), in the coparcenary

property. That share will devolve on her heirs by succession and not by

survivorship. The learned CCJ is right in concluding that Section 6 (3) as

worded and when read with Section 3 (2) of the act applies only to a male

Hindu and therefore the rights of Defendant No.3 in the suit property cannot

be determined with reference to that provision. Therefore, there is no

question of her son being permitted to claim any such right on that basis

after her death. He would succeed to her estate only by succession and not

by survivorship.

17. Of course in the instant case such question does not arise for

consideration for the simple reason that during her lifetime and after the

coming into force of the 2005 amendment the petitioner‟s mother never took

a stand that the suit property was ancestral or coparcenary property; she

never laid a claim to her right as a coparcener and to a share in the suit

property on the basis that it was coparcenary property. The suit was filed in

1984. The petitioner‟s mother filed her written statement in 1984 itself (with

an amendment purportedly in 2001). She never took a stand that the property

was an ancestral, joint family or coparcenary property. On the other hand,

the parties throughout have proceeded on the footing that it was the self-

acquired property of Shri Mela Ram Sood. Even if she could not have

possibly claimed to be a coparcener till the amendment to Section 6 in 2005

was enacted (which she did not, even thereafter), the nature of the property

remained the same. The actual proof of such claim, if made responsibly and

is shown to be prima facie tenable, may have to await evidence at the trial.

However, in the instant case the petitioner has made a sweeping claim that

the suit property is ancestral in an application under Order I Rule 10 twenty-

five years after the filing of the suit, without anything to show for it even

prima facie. In the circumstances, there is no question of the petitioner being

permitted to claim any such right on that basis. He can claim a right to

whatever comprises the estate of his mother only by succession. If the

plaintiff succeeds in proving that prior to her death the petitioner‟s mother

already relinquished her rights in the suit property in favour of the plaintiff

and her mother then that would effectively mean that the petitioner can have

no claim in the suit property. Whether in fact a partition already took place

of the suit property prior to 20th December 2004, whether the petitioner‟s

mother did receive Rs.40,000 in the oral family agreement and whether any

relinquishment deed was executed would be issues which would be decided

on the basis of the evidence led at the trial. In any event there is no question

of the petitioner being impleaded in the suit in his own right vis-à-vis the

suit property.

18. Consequently, this Court finds no error in the impugned order passed by

the learned CCJ dismissing the Petitioner‟s application under Order 1 Rule

10 CPC even while allowing the Plaintiff‟s application under Order XXII

Rule 4 CPC and bringing the petitioner on record as the sole LR of

Defendant No.3.

19. The petition and the pending application are dismissed.

S. MURALIDHAR, J.

APRIL 21, 2010 rk