Delhi High Court
U.N.Bhardwaj vs Y.N.Bhardwaj And Ors. on 5 October, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 05.05.2015
Date of Decision: 05.10.2015
+ IA 17114/2010 in CS(OS) 641/2005
U.N.BHARDWAJ ..... Plaintiff
Through: Mr. Anunaya Mehta, Adv.
versus
Y.N.BHARDWAJ AND ORS. AC+ ..... Defendant
Through: Mr. D.S. Mehandru, Adv. for D-10
Mr. Saurabh Sharma, Adv. for D-11(a) and 11(b).
AND
+ I.A. 6173 of 2013 in CS (OS) No.642of 2005
U.N.BHARDWAJ ..... Plaintiff
Through: Mr. Ravi Gupta, Sr. Adv. with Ms. Swati Gupta
and Mr. Anunya Mehta, Advs. with plaintiff in
person.
versus
Y.N.BHARDWAJ AND ORS. ..... Defendants
Through: Defendant No. 1 in person.
Mr. A.K.D. Sayare, Adv. for D-7 to 9, 11 (a),(b)
Defendant No.10 in person.
Mr. Vaibhav Mirg, Adv. for for D- 12 & 13.
CORAM:
HON‟BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This is an application under Order VI Rule 17 of the Code of Civil
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Procedure, 1908 seeking amendment of the plaint.
2. On 18.10.2010 this Court had held that the female heirs of Late Shri
R.N. Bhardwaj, i.e. his daughters Ms. Shashi Bala, Ms. Manju
Mudgal and Ms. Arun Sharma and his widow Smt. Chandrakanta
(Def. Nos. 3 to 6) are entitled to one-seventh share each, in the
proceeds arising out of the Bari rights of Mandir Shri Kalkaji.
Aggrieved by the order, the plaintiff preferred an appeal (FAO (O.S.)
No. 644-645 of 2010), latter he withdrew the same on 07.03.2013 and
sought leave from the Division Bench to take steps to amend the
plaint. Hence, this application.
3. The plaintiff seeks the following amendments in the plaint in terms of
the following: -
"i) That the title of the Suit may be read as 'Suit for partition of
joint properties both moveable and immoveable and
Declaration of Rights and Rendition of Accounts"
ii) After existing paragraph 6, following paragraph may
allowed to be added
6A. The Defendant No. 6, mother of the Plaintiff and
Defendants 1 to 5 has expired on 21.06.2012.
iii) After existing paragraph 7, the addition of the following
paragraphs may be allowed: -
7A. Devolution of rights and Succession opened when the father
of Plaintiff and Defendant No. 1 to 5 and husband of Defendant
No. 6, who was Karta of R.N. Bhardwaj H.U.F. died on
11.09.1991. That as per the notional partition, late
Sh.R.N.Bhardwaj, Plaintiff, Defendants 1, 2 and 6 were each
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entitled to l/5th share in the 50% of the aforesaid property.
7B. In the reconstituted Hindu coparcenary after the death of
Sh. R.N Bhardwaj, Sh. Y.N. Bhardwaj, Defendant No. 1, being
the eldest of LRs of Sh. R.N. Bhardwaj, became the Karta with
his two younger brothers as the coparceners of the said
reconstituted coparcenary. The Plaintiff and Defendant No. 1
and 2 were thus the only coparceners at the commencement of
Hindu Succession Act, 2005, which came into operation w.e.f.
09.09.2005.
7C. After the death of Late Sh. R.N.Bhardwaj, each of the seven
legal heirs became entitled to 1/7th share of the aforesaid 1/5th
share of Sh.R.N.Bhardwaj. Thus while Plaintiff and Defendants
1, 2 and 6 were entitled to 1/5th plus 1/35th share, Defendants
3,4,5 became entitled to 1/35th share in the property bearing
No.918/7, Mehrauli.
7D. After the death of Defendant No. 6, her share (1/5 + 1/35)
is further liable to be partitioned in 6 equal shares.
Accordingly, the shares of the parties in the aforesaid property
are thus:
Plaintiff, Defendant No. 1 and 1/5th of 50% as per notional
2 partition + 1/35th + 1/6th of
(1/5th + 1/35th) after death of
Def. 6
Defendant No. 3, 4 and 5 1/35th of 1/5th of 50% after the
death of R N Bhardwaj+
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1/6thof(1/5th + 1/35th) after
death of Deft 6
7E. That Defendants 7 to 11 being the legal heirs of Late Sh.
PrayagDatt are collectively entitled to 25% share in the
aforesaid property, while Defendants 12 and 13 are collectively
entitled to 25% share in the aforesaid property.
iv) The existing paragraph 8 be deleted and consequently
paragraph 11 and property at Item No. 2 in the Schedule of
properties be deleted.
v) After existing paragraph 9, following paragraph may be
allowed to be added:-
9A. Worshipping Devi (also known as Shakti), the main consort
of Lord Shiva, has been an integral part of Shaivism since
Early Gupta period. Shakti is being worshipped in multiple
manifestations. Its incarnation as Kali draws a large number of
devotees within the mainstream of Hinduism. It is a system of
belief through which devotees seek to achieve spiritual
wellbeing, by worshipping Devi as Kali, who is presiding deity
in Kalkaji Temple.
9B. Kalkaji Temple has its history dating for many centuries.
Three essential functions are performed by a Pujari in relation
to Mandir Shri Kalkaji. i.e. a) priestly (performing Sewa Puja
of the deity inside the temple at specified hours and in a
specified manner), b) managerial (managing land, building and
tehbazari contracts) and c)secular (running day to day and
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overall affairs of the temple).In the Mandir Shri Kalkaji all
three functions are intertwined in the sense ,that all three types
of functions are performed by a Pujari during his turn-Bari
who perform the Sewa puja , manage the estate, tehbazari and
day to day functions, as and when his Bari i.e. turn comes as
per the custom followed in the Temple. A Pujari during his Bari
enjoys complete and exclusive autonomy with regard to the
aforesaid three functions without interference from other
Pujaris or any other person.
9C. The Pujaris who are entitled to receive the offerings and
tehbazari at the Kalkaji Temple fall in two categories i.e.
Bhardwaj Brahmans of Village Chirag Delhi known as Thok
Brahmins and Jogis (with Guru-chela custom), known as Thok
Jogians. Bhardwaj Brahmins are split into four groups known
as Thulas namely Thula Rambaksh, ThulaBahadur, Thula
Jasram and ThulaTansukli. . Each of the four Thulas is entitled
to 3 (three) annas share out of total 12 (twelve) annas share
allocated to the Thok Brahmins, remaining 4 annas fall to the
share of Thok Jogians thus aggregating to old Rupee One
comprising of 16 Annas. Plaintiff belongs to the Thula
Baliadur.
9D. Origin of the right to perform Sewa Puja of Mandir Shri
Kalkaji by the forefathers of the Plaintiff and the defendants
goes back to Pandit Umrao, father-in-law of late Pandit
Gopinath. The need for Pandit Umrao to alienate his rights in
favour of his son-in-law arose as he had no male heir and a
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Bhardwaj Brahmin alone could be a pujari in the Kalkaji
temple as per long established custom. It is pertinent to mention
that the Sewa Puja after his death could not have been
performed by a female as per the custom i.e. by his daughter,
on whom the right to perform Sewa Puja would have otherwise
accrued on account of being his only surviving descendant,
which was possible if the right to perform Sewa Puja had been
a coparcenary property. Thus he was left with no option but to
alienate his rights to a male Bhardwaj Brahmin, i.e. Pandit
Gopi Nath (son-in-law of Pandit Umrao and ancestor of the
present parties) to whom he first mortgaged his rights for a
consideration. LaterPt. Umrao could not repay the amount of
loan and also he became too frail and blind on account of
which he could not perform Sewa Puja. Thus during his lifetime
in about year 1889he alienated his right to perform Sewa Puja
of Mandir Shri Kalkaji in favour of Late Pt. Gopi Nath. This
alienation was challenged by a pre-emption Suit filed by
collaterals of Pt.Umrao and the said Suit was dismissed in the
year 1890. It is in the aforesaid facts and circumstances that
since 1889 Pt. Gopinath enjoyed the right to perform Sewa
Puja of Mandir Shri Kalkaji. After the death of Pt. Gopi Nath
his male descendants only have continuously and
uninterruptedly performed and enjoyed the right to Sewa Puja
till date. Further the male descendants of Sh. R.N.Bhardwaj
have performed Sewa Puja since 1991 alongwith Sh Prayag
Dutt and Sh Hans Raj and after their death alongwith Defts. 7
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to 13 in the present suit. Thus as per the established custom, the
right to Sewa Pujanot being rights in a coparcenary property
did not pass on to the female heirs of late Sh. R.N.Bhardwaj.
9E. Even under Hindu Succession Act, there is no provision to
deal with the peculiar rights such as Sewa Puja rights and as
such there is no repugnancy with the above custom.
v) The existing paragraph 10 be deleted and consequently
property at Item No. 4 in the Schedule be deleted
vi) The prayer (a) may be allowed to be amended to read as
a) Pass a decree for partition as per shares mentioned in para
7D and 7E, with respect to property at item no. 1 in favour of
the legal heirs of Shri R.N. Bhardwaj, Shri Prayag Datt and
Shri Hans Raj and possession of the same be delivered to each
of them,
vii) The following prayers may be allowed to be inserted after
prayer a)
aa) pass a decree of declaration, that the right to perform Sewa
Puja of Mandir Shri Kalkaji and collect the offerings of Sewa
Puja and Tehbazari only with male descendents of Sh Prayag
Dutt, Sh Hans Raj and Sh R.N.Bhardwaj as a customary right
which is not affected by The Hindu Succession Act 2005;"
4. Mr. Ravi Gupta, the learned Senior Advocate for the plaintiff submits
that the suit was essentially for partition of the rights of the parties in:
a. House No. 918/7 Mehrauli;
b. Plot bearing Kharsa Nos. Gair Mumkin Pahad 1442, Mehrauli,
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New Delhi;
c. Bhardwaj Nursey at Mehrauli; and
d. Mandir Puja in Shri Kalkaji Mandir
5. The learned counsel further contends that the present application
seeks only to elucidate and elaborate the main arguments of the
plaintiff that the Sewa Bari was restricted to male descendents of
Pandit Umrao as stated in Para 9 of the plaint; that in the interim
application moved by one of the defendant seeking a share in the
offerings, this Court on 18.10.2010 held that female descendents had
a right in the offerings but there was no determination as to whether
they had an inalienable right in performing puja also; that sharing of
the offerings is completely different from performing the essential
aspects of a Pujari‟s duty, i.e., worship of the deity and performance
of the Sewa Bari Puja; that since time immemorial, females have
never performed or taken active part in the Sewa puja and this has
been a custom, which shall be best kept undisturbed; this contention
has been set out in para 9 of the plaint. He submits that with regards to
this fact and contention, no new case has been made out, and an
amendment at this stage would shed light on what the true matters of
contention are. There has been no inordinate delay in seeking the
amendment. He furthers submits that an appeal against the order dated
18.10.2010 was preferred immediately and was later dismissed as
withdrawn on 07.03.2013. The order reads as under:
"C.M. No. 1186/2013 (Under Order XXII Rule 2 CPC)
The application has been filed on account of
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demise of respondent no. 6, the mother of the appellant
who is survived by her sons and daughters, all of whom
are already on record as parties in the present suit. Six
legal heirs are the appellant and respondent Nos. 1 to 5.
Respondent No. 1 appearing in person states
that respondent no. 2 is seeking to propound a Will
claiming to be the sole beneficiary though he has given
no objections in other proceedings, i.e., CS(OS) No.
641/2012, of all the legal heirs to be brought on record
subject to his establishing the Will. Thus, the name of
respondent no. 6 is deleted from the array of the parties.
Application stands disposed of.
The date before the Registrar is cancelled.
FAO (OS) No. 664-65/2010
We have heard learned senior counsel for the
appellant at length. Learned senior counsel for the
appellant after elaborate arguments seeks to withdraw the
appeal as he states that the appellant has been advised to
take recourse to an endeavour to seek amendment of the
plaint as it would be difficult to establish the case on the
existing plaint.
We dismiss the appeal as withdrawn without
making any comments on the merits of the controversy or
merits of the plea advanced by the learned counsel for
the appellant."
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6. Thereafter, this application for amendment of the plaint was
moved by the plaintiff on 11.04.2013. The learned senior counsel for
the plaintiff relies upon the decision of this Court in Raj Rani &Anr.
v. Sumitra Parashar & Anr.,2014VIAD(Delhi)690 in which the
learned Single Judge had held that the term "commencement of trial"
as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure
must be understood in the limited sense as meaning the final hearing
of the suit, examination of witnesses, filing of documents and
addressing of arguments. The learned Single Judge was of the view
that the amendment could be permitted even when the affidavits in
evidence have been filed and recording of evidence has commenced.
The true test of whether an amendment should be allowed or not is
based on when the need for amendment arises. If the applicant is able
to show that he had undertaken due diligence before he makes the
application for amendment, the application shall be allowed in the
interest of justice; that when it is required that the real controversy
between the parties should be determined, an amendment which seeks
to do so, if not allowed, would tantamount to knocking-off the case of
the applicant. According to the learned Senior Advocate, in the
present case the need for amendment arose only after the order of
18.10.2010 crystallized, as an interim measure, some rights in favour
of defendant Nos. 3 to 6. Therefore, the amendments have been
necessitated by change in circumstances consequent upon the order of
this Court. In effect the amendment has become necessary by
circumstances beyond the control of the plaintiff and as a result of
orders of this Court.
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7. Mr. Bhardwaj, defendant No.1 appearing in person, states that
evidence has to be led for determination of issue no.3 "whether the
Seva Pooja of Kalkaji Temple is impartible and defendants No.3 to 6
do not have any share in the same, as alleged by the plaintiff? OPP".
He submits that the issue has been specifically caste in two parts and
it is the second part of the issue which needs to be determined because
defendant Nos.3 to 6 are ladies.
8. The learned counsel for the plaintiff also submits that the
second part which relates to defendant Nos.3 to 6, who are ladies, is
the one for which the evidence is sought to be led by the parties and
the amendment is sought in this regard, pursuant to which the plaintiff
would be able to adduce documents and other forms of evidence
which if not allowed would prejudice their case. He submits that
affidavit of evidence have been filed and cross-examination of
witnesses has begun but allowing the amendment application would
not injure or prejudice the rights of the defendants and the plaintiff
may be put to such terms as may be deemed appropriate by this Court.
9. Mr. Ravi Gupta, the learned Senior Advocate for the plaintiff
submits that the issues of claim of sewa pooja and collection in each
bari were not firmly/finally settled in the previous order of this Court
but were a prima facie view. The merits of this issue would need to
be determined after a full trial and the application is only to set up the
issue to be determined. He further submits that issue No. 3. insofar as
it seeks to determine the right of defendant No. 3, would have to be
tried in terms of para 9 of the plaint; hence, the argument apropos the
limitation raised by the non-applicant is misplaced. He further
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submits that reference to para 4 of I.A. 16506 is only with respect to
the nature of evidence which will be required to be led and in any
case, the issue regarding determination of rights of the various parties
in the suit property will have to be tried. He contends that
furthermore, since two properties are sought to be deleted from the list
of suit properties that the nature of rights will change and the
amendment sought has to be viewed accordingly. He also relies on
Section 20 of the Specific Relief Act to contend that the relief of
Specific Performance is a discretionary relief.
10. Mr. A.K.D. Sayare, the learned counsel for defendant Nos.7 to
9 opposing the application submits that no cogent reasons have been
given for seeking deletion of two properties from the suit. He submits
that the issues were cast on 20.4.2009, the application was moved on
11.4.2013 and there is no justification for moving the application four
(4) years thereafter; that in the absence of any justification for deleting
the two properties, the application is baseless and should be dismissed
especially because this is a suit for partition therefore subsisting
interests of all the parties in the properties listed in the suit; no
application under Order 6 Rule 17 of the CPC should be allowed
when there is lack of diligence in moving the application; it should not
be permitted at this belated stage. To support his contention he relies
upon the dicta of the Supreme Court in Ajendraprasadji N. Pande &
Anr. v. Swami Keshavprakeshdasji N. & Ors. AIR 2007 SC 806
which held as under:
"40. Under the proviso no application for amendment shall be
allowed after the trial has commenced, unless inspite of due
diligence, the matter could not be raised before the
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commencement of trial. It is submitted, that after the trial of the
case has commenced, no application of pleading shall be
allowed unless the above requirement is satisfied. The amended
Order VI Rule 17 was due to the recommendation of the Law
Commission since Order 17 as it existed prior to the
amendment was invoked by parties interested in delaying the
trial. That to shorten the litigation and speed up disposal of
suits, amendment was made by the Amending Act, 1999,
deleting Rule 17 from the Code. This evoked much
controversy/hesitation all over the country and also leading to
boycott of Courts and, therefore, by Civil Procedure Code
(Amendment} Act, 2002, provision has been restored by
recognizing the power of the Court to grant amendment,
however, with certain limitation which is contained in the new
proviso added to the Rule. The details furnished below will go
to show as to how the facts of the present case show that the
matters which are sought to be raised by way of amendment by
the appellants were well within their knowledge on their Court
case, and manifests the absence of due diligence on the part of
the appellants disentitling them to relief."
11. The learned counsel seeks to distinguish the judgement relied
upon by the applicants, i.e. Rajrani & Anr. vs. Sumitra & Anr.
(supra), on the ground that the Court was of the view that the plaintiffs
in that case were not aware of the existence of the documents prior to
the institution of the suit hence the application was allowed.
Therefore, the facts of that case are different from the present case
hence its ratio too would be in-applicable to the present case.
12. The learned counsel for defendant Nos.11a & 11b reiterates the
same arguments as advanced by the learned counsel for defendant
Nos.7 to 9. He further submits that the plaintiff is not dominus litis in
a partition suit as has been held in R. Ramamurthi Iyer v. Raja V.
Rajeswara Rao AIR 1973 SC 643, wherein it was held as under:
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"15. It has further been emphasised that in a partition suit the
plaintiff is not wholly dominus litis and even on the assumption
that S.3 confers a privilege or an option on the shareholder
who is a defendant in a suit for partition the plaintiff is
debarred from defeating the exercise of that privilege or option
by resorting to the device of withdrawing a suit under Order 23
Rule 1."
13. Mr. Mann, the learned counsel for the defendants opposing the
applications submits that the right to claim Sewa Puja by the ladies
has been determined in the order of this Court dated 18.10.2010,
therefore, there is no occasion for revisiting the issue and that the
matter went in appeal which was subsequently withdrawn with liberty
to pursue the remedies as may be available in law. The learned
counsel submits that the relief of declaration sought in the plaint is
barred by limitation under Article 58 of the Limitation Act because
the issue was cast in 2009 and the application was filed in 2013, i.e.
way beyond time and there is no explanation for the same having been
preferred at such a belated stage. He further submits that the
amendment would also change the nature and scope of the suit since
the suit as filed would only determine the rights between the parties
but now its scope is sought to be expanded to include the
determination of whether the parties have a right in the collection of
the offerings, in particular the shares of defendant No.3 to 6 (ladies)
are sought to be reduced and abridged by introducing argument that
ladies never had the right to perform Sewa Puja, consequently their
right to collect the offerings would also be affected. He submits
identical arguments were considered by this court in its order dated
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18.01.2010 and the same was rejected. In the said order this Court
held as under:
14. Mr. Mann submits that insofar as the plaintiffs themselves have
admitted to the settlement of 1843 which received judicial imprimatur
that proceeds, rights and entitlement were to be divided into four
shares, hence no further determination of shares in the manner sought
by the amendment was warranted; hence there is no justification for
this application, hence it ought to be rejected. He submits that the law
has been amended to accord equitable shares to men and women, but
what the plaintiffs seek to prove is contrary to Section 4 of the Hindu
Succession Act, 1956, which reads as under:
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"4. Over-riding effect of Act.-
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is
made in this Act.
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus
in so far as it is inconsistent with any of the provisions
contained in this Act.
(2) For the removal of doubts it is hereby declared that
nothing contained in this Act shall be deemed to affect
the provision of any law for the time being in force
providing for the prevention of fragmentation of
agricultural holdings or for the fixation of ceilings or for
the devolution of tenancy rights in respect of such
holdings."
15. Mr. Mann further submits that there is no scope for
interpretation of bringing in rights based on custom which is contrary
to Section 4 of the Hindu Succession Act since it has an overriding
effect on any custom or usage which was law in force immediately
before the commencement of the Act; that all such rights as may
flow from the management of the temple already stands determined
by the statute; that what is to be determined is the share of the
parties and it has nothing to do with the actual Puja which is a
part of the bari/turn. He contends the share in the offerings is
consequent upon the offerings collected during the tenure of the
paridar. The paridar himself/herself does not have to perform
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the puja which can be performed by an agent or priest and the lady-
sharer-paridar herself does not necessarily have to either perform the
puja or be present during the ceremony. It has already been held by
this Court in the order dated 18.01.2010. Therefore any argument to
the contrary now sought to be agitated would be redundant. Mr.
Mann submits that the suit has been pending for over a decade and the
application is nothing but a dilatory tactic. He submits that proof of
delay is also in the fact that the plaintiffs have opposed the recording
of evidence before a Local Commissioner to be appointed by the
Court costs of which would be borne exclusively by defendant No.2.
A Local Commissioner has already been appointed before whom the
next date fixed is 7.7.2015. Mr. Bhardwaj, however, has submitted
that he will complete his evidence in one (1) month. The learned
counsel for defendant Nos.2 to 5 submits that he will conclude the
recording of their evidence within a month thereafter and the
remaining defendants shall conclude the recording of their evidence in
the subsequent two (2) months. Accordingly, the Local
Commissioner shall not grant any adjournment in the matter unless
absolutely necessary for doing so. The evidence in any case shall be
recorded by 31.12.2015.
16. According to Mr. Mann, the proposed amendment is hit by the
principle of res-judicata, since the issue has been adjudicated by this
Court vide order dated 18.10.2010, and the said order has attained
finality as the appeal against the same was dismissed by the Division
Bench of this Court vide order dated 07.03.2013; that the plaintiff is
trying to re-open and re-agitate a matter that has already been decided
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and the same is not permissible in law; that the amendment will lead
to the creation of a new controversy between the parties and would
result in multiplicity of litigation therefore it must not be allowed.
17. In rebuttal, the learned senior counsel for the plaintiff has
stressed that in the present case, the need for amendment arose only
after the order of this Court on 18.10.2010, which crystallized the
rights of defendant nos. 3 to 6, though only as an interim measure.
According to him, amendment was thus necessary due to the change
in circumstances, which were beyond the control of the plaintiff.
ANALYSIS
18. Hence the issue is whether in view of proviso to Order 6
Rule 17 CPC the present application can be allowed. The said
statutory provision reads as under:-
17. Amendment of pleadings.-The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
19. The proviso which has been inserted w.e.f. 1.7.2002 states that
no application of amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the
commencement of trial.
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20. In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC
712, the Apex Court held:
"13. The purpose and object of Order VI Rule 17 CPC is to
allow either party to alter or amend his pleadings in such
manner and on such terms as may be just. The power to
allow the amendment is wide and can be exercised at any
stage of the proceedings in the interests of justice on the
basis of guidelines laid down by various High Courts and
this Court. It is true that the amendment cannot be claimed
as a matter of right and under all circumstances. But it is
equally true that the Courts while deciding such prayers
should not adopt a hypertechnical approach. Liberal
approach should be the general rule particularly in cases
where the other side can be compensated with the costs.
Technicalities of law should not be permitted to hamper the
Courts in the administration of justice between the parties.
Amendments are allowed in the pleadings to avoid uncalled
for multiplicity of litigation."`
21. In the event that some of the properties which are available for
partition are removed from the plaint schedule, the decree would be
invalid on the ground of partial partition. A further suit will have to
be filed at the instance of the defendant to include all the properties,
which form the corpus of joint properties for partition hence the
request for deletion of the two properties from the schedule of
properties would not be proper. The Court would be mindful of the
possibility of the multiplicity of litigation. A matter concerning
partition of joint properties must be laid to rest at the very first
instance so as to not bring about any qualms regarding the same at a
later stage. Interest republicaseut sit finis litium is a well-settled
maxim, and the exclusion of any joint properties in a suit for partition
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would defeat its very purpose.
22. This Court would note that while disposing off a bunch of
applications, on 18th October, 2010 pertaining to the "proportion of
sharing the proceeds from the Bari falling to members of the branch
of the family to which the parties belong in respect of various festivals
and events that occur from time to time at the Mandir Shri Kalka Ji
(hereinafter referred to as „Temple‟), New Delhi. The Court, in a
detailed judgment, had noted, inter alia, thus:
"10. The brothers' main contention is that Puja
Sewa and tehbazari and offerings etc. are integral to
each other and inseparable to the rituals and practices of
the temple. According to them, the customs from time
immemorial enjoin only male Brahmins (Gotra
"Bhardwaj") and members of various Thulas can act as
priests in the temple and they, to the exclusion of others,
perform Puja Sewa and receive their share of offerings
and tehbazari etc. It is contended that the right and share
of Puja Sewa in Mandir Sri Kalkaji cannot be
bequeathed. The plaintiffs argue that the married
daughters and their children have never acted as priests
and are also not entitled to receive any share in the
offering etc. The custom (i.e. of Puja Sewa being
performed by men alone since time immemorial), say the
brothers, has been accepted as valid and binding and
women have never performed Puja Sewa in the temple.
This position was also accepted and confirmed by
judgment dated 31.10.1981 in civil suit being No. 15/76
titled Ganga Jeevan Sharan v. Rakesh Kumar & Others
and concluded as under:-
"29. The plaintiff argues, somewhat elliptically,
that Devi cult or worship is itself a denomination,
and that the practice - of male heirs of the family
being entitled to worship, and their entitlement to
the "Bari" rights - is a "core" denominational
right. Now, while one can understand that Devi
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worship is part of Hindu religious practice, there
ought to be something more to say that a large and
amorphous - at time diverse body of devotees,
committed to Devi worship can be called as a
religious denomination. Devi worship can be in
several forms - Kali or Durga, Chamunda, or
Vaishno Devi, or Kamakshi and so on. Devi or
Shakti worship is widespread amongst most
Hindus at certain times of the year, particularly at
the time of the "Navaratris" in March-April, and
the second, in October. While worship of Shakti or
Devi, may be common, as it celebrates "female"
power that alone is an insufficient premise to
conclude existence of a denomination. What are
the essential pre-requisites for a grouping to be
called a religious denomination, was spelt out in
Nellor Marthandam Vellalar & Ors. v.
Commissioner, Hindu Religious And Charitable
Endowments & Ors, 2003 (10) SCC 712, where the
Supreme Court revisited the law in this respect: "It
is settled position in law, having regard to the
various decisions of this Court that the words
"religious denomination" take their colour from
the word „religion‟. The expression "religious
denomination" must satisfy three requirements -
(1) it must be collection of individuals who have a
system of belief or doctrine which they regard as
conducive to their spiritual well being, i.e., a
common faith; (2) a common organisation; and (3)
designation of a distinctive name. It necessarily
follows that the common faith of the community
should be based on religion and in that they should
have common I.A. Nos. 3761/05, 3762/05,
10176/06, 10923/07, 13834/07 & 4380/10 in CS
(OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS
(OS) 642/2005 Page 27 religious tenets and the
basic cord which connects them, should be religion
and not merely considerations of caste or
community or societal status. On the basis of the
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evidence placed on record, the first appellate
Court as well as the High Court found that Vellala
Community is not shown to be a distinct religious
denomination, group or sect so as to be covered by
Art. 26 of the Constitution. Further, it was
necessary for the plaintiffs to establish their claim
in respect of the temple that the said denomination
group has established and is maintaining and
administering the suit temple to take the protection
of Art. 26 of the Constitution and S. 107 of the Act.
High Court found, after meticulous and careful
consideration of material that there was no
evidence to prove that the members of the Vellala
Community have been shown to have any common
religious tenets peculiar to themselves other than
those who are common to the entire Hindu
community...."
30. The plaintiff has been unable to show how
the essential elements that go towards pointing to
existence of a denomination are present in this
case. The temple no doubt is dedicated to Devi
worship; other than that, there is no evidence
presented to establish that it is part of a
denominational order, which possesses a common
organization, with a set of common practices, and
follows rituals, which are shared by other temples
and institutions. The common denominations,
which spring naturally to the mind, in the context
of the Hindu religion, are the Ramakrishna
Mission, the Hare Krishna movement, Radha
Saomi Satsangis, Arya Samaj, Ananda Margis, the
Raghavendra Math, etc. The temple in this case
clearly is a nondenominational one, though
dedicated to Devi worship. Its customs and rituals
are not rigid, as the evidence of the first defendant
establishes. Though family members - and not all
of them, have to follow or observe certain
practices, there appears to be no compulsion that
all have to do so; there is no rigid rule about the
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rituals; even Shastric knowledge is not essential.
Prayers and worship can be easily performed, by
reading the text found in the walls of the temple.
As far as the Bari right is concerned, there is no
rule that one who secures that right has to
invariably perform religious rituals or worship, as
a condition, or as an essential part of the
enjoyment of the right.
31. So far as the Plaintiff's contention about
custom debarring female heirs from participating
in Bari benefits, and worship is concerned,
concededly, the materials disclose that one Pt.
Umrao had originally enjoyed the right of worship.
He fell seriously ill and due to advancing age he
was unable to perform Sewa Puja. He, therefore,
permitted his son-in-law Pt. Gopi Nath to perform
Puja Sewa on his behalf. Later, Pt. Umrao became
blind; he mortgaged his Puja Sewa rights in
Mandir Sri Kalkaji in favour of Pt. Gopi Nath by a
written document. He was unable to discharge the
debt during his life time. As a result, he alienated
the Puja Sewa rights in I.A. Nos. 3761/05,
3762/05, 10176/06, 10923/07, 13834/07 &
4380/10 in CS (OS) 641/05 & I.A. Nos. 3250/10 &
4379/10 in CS (OS) 642/2005 Page 28 to the said
Pandit Gopi Nath. After the latter's death, those
rights were asserted by his male descendants.
These facts are significant and revealing, as
Pandit Umrao both alienated his right of worship
(negativing the plaintiff's argument about its
inalieanability) and granted it to his daughter's
branch. These events took place barely 100 years
ago. They wholly contradict the plaintiff's claim
that the right to worship and enjoy Bari benefits
(which today implies the right to tehbazari
proceeds) exclusively vested in male heirs.
32. It would be necessary to remember that
according to Article 13 of the Constitution of
India, laws in force in India, immediately before
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the commencement of the Constitution,
inconsistent with or in derogation of fundamental
rights, to the extent of inconsistency, are void.
Article 13 (2) enjoins the State not to "make any
law which takes away or abridges the rights
conferred by this Part and any law made in
contravention of this clause shall, to the extent of
the contravention, be void." Most crucially, Article
13 (3) defines law as follows: "(3) In this article,
unless the context otherwise requires,- (a)"law"
includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in
the territory of India the force of law; (b)"laws in
force" includes laws passed or made by a
Legislature or other competent authority in the
territory of India before the commencement of this
Constitution and not previously repealed,
notwithstanding that any such law or any part
thereof may not be then in operation either at all
or in particular areas." If one keeps the above
commandment in mind, and contextualizes it in
relation to Sections 4 and 6 of the Hindu
Succession Act, read with Article 15 of the
Constitution of India, the Court is under an
obligation to avoid the odium of a gender
discriminatory interpretation, to any law, which
denies property rights to women. In this case,
despite assertions, the plaintiff has been unable to
establish that: (1) The Bari rights are intrinsically
connected with worship in the temple; (2) That
such worship, even if they are assumed to be a
condition, cannot be performed on behalf of the
female heirs, by someone else; (3) That such Bari
rights cannot be enjoyed by female heirs; (4) That
Bari rights are impartible, inalienable and do not
constitute property. I.A. Nos. 3761/05, 3762/05,
10176/06, 10923/07, 13834/07 & 4380/10 in CS
(OS) 641/05 & I.A. Nos. 3250/10 & 4379/10 in CS
(OS) 642/2005 Page 29 On the other hand, all the
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authorities - at least three Supreme Court
judgments have ruled that the right to worship can
be alienated, and that such Bari rights can be
enjoyed by female Hindus. 33. This Court does not
wish to recollect the various treaties and
International covenants to which India is a
signatory, assuring equal treatment of women, and
guaranteeing elimination of all forms of
discrimination. If one keeps the underlying
principles of those international covenants and the
guarantee of equality held out by our Constitution,
in mind, it would be anachronistic and regressive
to affirm the plaintiff's contention that the
discriminatory practice of excluding female heirs
from the benefits of property rights to which Baris
are attached - which appears to have existed all
this while- should be continued. Such is not the
mandate of law; such is not the custom or practice
of any denomination, as claimed. 34. Having
regard to this factual matrix, and the above
findings, this Court concludes that the female heirs
(i.e. daughters and widow of late R.N. Bhardwaj)
are entitled to equal one seventh share each, in the
proceeds in enjoyment of the Bari rights, which
accrued to the other heirs. The amounts deposited
in this Court shall, to the extent of their
entitlement, after adjusting the amounts received
under this Court's orders, be disbursed to them.
All the above applications are disposed of in these
terms.""
23. From the preceding discussion what emerges that the issue as to
whether a female heir, i.e., the daughter and widow of R.N. Bhardwaj
are entitled to 1/7th share each in the proceeds in enjoyment of the
bari rights, which accrue to the other heirs is settled at the
interlocutory stage; the Kalkaji temple is not a part of a
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denominational order which possesses a common organisation with a
set of common practices and rituals which are shared by other temples
and institutions like Ramakrishna Mission, Hare Krishna Movement,
Radha Soami Satsang Beas (RSSB), Arya Samaj, Sri Raghvendra
Math etc. and the temple being a non-denominational one with non-
rigid customs and rituals which have been established by the first
defendant, and the plaintiff having been unable to establish that the
puja bari rights intrinsically connected to worship in the temple which
even if it is assumed to be a condition, cannot be performed on behalf
of the female heirs by someone else. The aforesaid order has attained
finality because an appeal against it has been withdrawn by the
plaintiff.
24. Insofar as this Court has held that the plaintiff has been unable
to establish that the worship, even if assumed to be a condition,
cannot be performed by a female heir through a male agent, the
amendments sought in para 9 (b), (c), (d) and (e) would be redundant,
futile and of no consequence. Along with the prayer (aa), the
amendment now seeks to set-up a new case and not merely to
elucidate and elaborate upon the basic case of the plaintiff, i.e., Sewa
Bari is restricted to the male members of Pt. Umrao, as averred in
para 9 of the plaint. There is nothing to show that the amendment now
sought could not have been made earlier with due diligence.
Furthermore, insofar as the amendment seeks to delete two of the four
properties initially scheduled for partition, the same cannot be
permitted because there cannot be partial partition of joint properties1.
Kenchegowda (since deceased) v. Siddegowda Alias Motegowda (1994) 4 SCC 294
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For a comprehensive and equitable partition of joint family properties
of Pt. Umrao, his entire estate would need to be considered.
Therefore, the partial partition in the estate cannot be allowed.
Consequently, the request for the deletion of the two properties from
the schedule forming the estate of Pt. Umrao cannot be permitted.
While the right of a party to seek amendment of pleading before the
commencement of trial is secured in law, it would need to be seen
whether the application itself is bonafide or otherwise maintainable.
In view of the adjudication by this Court in IAs on 18th October, 2010,
in particular in para 32, the aforesaid amendment sought in the plaint
cannot be granted.
25. Accordingly, the applications are dismissed.
CS(OS) 641/2005 & CS(OS) 642/2005
List on 17.11.2015 for further proceedings.
NAJMI WAZIRI, J
OCTOBER 05, 2015/ak
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