TMI Blog1982 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant The plaintiffs, the sons of Nanak Chand, appellant, born of Raj Rani, served a notice (Ex. D1/10), on him on 17-5-1963 intimating that they have been living separately and that he had not given them their share of the properties and income there from and has evaded partition of the properties by mates and bounds. They demanded accounts of all the properties, rent, income and partition within a week. The plaintiffs then filed a suit on 27-8-1963 in the court of the Sub-Judge for permanent injunction restraining the defendant Nanak Chand from transferring the properties and shares and from acting on their behalf and from interfering with the peaceful enjoyment of the property. The suit was dismissed on 29-9-1966 but the defendant was restrained from alienating the share of Rakesh Kumar. Thereafter on 23-7-1969 the present suit was filed. The learned single Judge held that the joint status shall be deemed to have disrupted on 17-5-1963. It was on the basis of this date that he proceeded to record his findings as to the properties which stood as joint in May, 1963. (3) The properties involved are as follows: immovable: 1. Houses: Houses bearing Municipal Numbers 2494. 3893 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be joint property in possession of the defendant. They were originally purchased for ₹ 7000. (2) Vespa Scooter was a joint property. It was sold and ₹ 2000 were deposited in Goodwill Finance Corporations. (3) Ornaments Jewellery were held non-existent. (4) Bank account in Hindustan Commercial Bank Ltd. and United Commercial Bank Ltd. were held non-existent. (4) The learned single Judge also found that Bimla Devi before she married the present defendant Nanak Chand was already married according to Saptapadi rites to one other person a related of Nanak Chand. Though the other Nanak Chand had treated his marriage with Bimla Devi as dissolved as is evidenced by the fact that he had married again, yet the marriage between Bimla Devi and the other Nanak Chand not having been in fact dissolved, Bimla Devi was incapable of contracting a second marriage and her marriage with defendant No. 1 was, Therefore, void ab initio and consequently defendants 5 to 7 were entitled to no share. He held that the plaintiffs and defendant No. 1 are thus entitled to 1/4th share each in the joint estate as aforesaid and that in Delhi a son governed by Mitakshara Law can claim partition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was within limitation. This objection has got to be rejected because it was a mixed question of the time of arguments in this appeal. Even otherwise, it is without any merit as we will presently show. Notice (Ex. D1] 10) was given on 17-5-1963 which was served on 23-5-1963 and the suit was filed on 23-7-1969. It was contended that the Article of limitation application to the suit is the residuary Article 113 (old 120) which allows a period of three years (old six years) from the time the right to sue accrues : see Chowkaran Pashukkath Asanlevi v. Pushail Veluthan Charis Ummer and others, Air 1956 Mad 100. The learned counsel for the appellants maintained that the right to see accrued on 17-5-1963 when the plaintiffs gave notice of (heir definite and unambiguous intention to separate from the family and to demand division and thereby to enjoy their shares in severally. The learned counsel for the appellant further relied on Raiaram Vithalii Sheth and another v. Magan Lal and others, (1970) 2 Glr (2), according to which decision, the proper article in respect of a suit by one co-sharer against the other for division of immovable property is Article 120 (113 new) and not Article 127 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of his father, and, Therefore, had no right to interfere with his legal right to deal with it has to be excluded under Article 14 of the Limitation Act, as spent in bona fide and diligent per suit of a legal proceeding in another court. The suit was lost because the position of law was not correctly appreciated by the learned Sub-Judge. (8) After consideration, we agree that the contentions of the plaintiffs ought to prevail on all the points but we wish to say something regarding the article of limitation applicable to the case. (9) Separation from the joint family involving severance in status with all its legal consequences is quite distinct from the de facto division into specific shares of the joint property. One is a matter of individual decision, the desire to cover himself and enjoy his hitherto undefined and unspecified share separately from the others; whilst the other a natural resultant from his decision is the division and separation of his share which may be arrived at either by private agreement or by arbitration appointed by the parties or in the last resort by the court. One should not confuse the severance of status, with the allotment of shares. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its infringement or, at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted : Mst. Bolo v. Mt. Koklen and others. Where there are successive invasions or denials of a right, the right to sue under Article 120 (Article 113) accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such right, however, ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether the threat effectively invades or jeopardizes the said right: Mst Rukna Bai v. Lala Laxminarayan, [1960]2SCR253 . The right to partition sprang into existence in this case when the notice of severance and demand for partition was served, but right to sue did not accrue until the defendant infringed or threatened to infringe that right. The plaintiffs had averred that it was in 1968 and afterwards that the defendant began to infringe the tenancy-in-common and deny their right to share. Such a pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into effect after the death. He rejected the contention of the defendants and held that the document (Ex. D1/55) was only an adoption deed and not a will. We agree with this construction. Quite simply, the disputed words only purport to convey that after his death, his adopted son will be the owner of the properties left by him, that is to say that during their life time they both will hold the property as coparceners and after his death the property will certainly pass on to Nanak Chand, defendant No. 1 subject, of course, to all legal incidences. That apart, the deed itself demonstrates that the first act of Banarsi Das was to take Nanak Chand into adoption and the second and subsequent act was the so-called disposition of the property. Long ago it was settled by the Privy Council that there can be, no conditional adoption. It cannot be undone. It cannot even he restricted by any condition to which the natural father may have agreed before-hand in order to effect adoption. While reversing the decision in Krishna Murthy Aiyar v. Krishna murthy Aiyar (supra), the Privy Council, in Krishna Murthy Aiyar v. Krishnamurthy Aiyar, Air 1927 Pc 179 (14), placed it beyond doubt that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spose of it by will : Kalyani v. Narayanan and others, [1980]2SCR1130 . None of the plaintiffs was born when the will was made, and. Therefore, there was no occasion for him to convey that the grandchildren shall stand disinherited. Much weight has to be attached to the normal feature of life that a Hindu would not deprive his sons and grandsons of their right of inheritance. Mst. Bolo v. Koklan. Taking the document and all the relevant facts into consideration, it could not be said that by the mere use of the words 'Malik Matruka' the donor intended to confer a bounty upon his adopted son exclusively for his benefit and capable of being dealt with by him at his pleasure and not to pass on to his children. From the very intention to adopt, if can be presumed that he wanted the family and the property to perpetuate. Indeed, there is overwhelming evidence to show that the properties were treated as joint family property as is clear from the registers (which are , now said to have been destroyed), the several returns filed by the defendant and the assessment orders made by the Income Tax authorities right from 1947-48 to the year 1969-70. In the suit filed on 28-12-1961 by one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptapadi was performed before the sacred fire, and (2) Bimla Devi had already stood married to another person of the same name, i.e. Nanak Chand, and that marriage had not been dissolved. The defendants, on the other hand, contend that there was no valid marriage of Bimla Devi with the former Nanak Chand. The learned single Judge, as already said, sustained the objection of the plaintiffs and held that all necessary ceremonies were performed at the time of marriage of Bimla Devi with the other Nanak Chand and at the time of her second marriage with defendant Nanak Chand in July, 1952, her previous husband was still living and that the marriage of Bimla Devi with him was not dissolved by divorce even under any custom. The marriage between Bimla Devi and the other Nanak Chand not having been dissolved, Bimla Devi was incapable of entering into a second marriage with defendant Nanak Chand. Her marriage with defendant Nanank Chand was no marriage in the eye of law and, Therefore, void ab initio. We have gone through the evidence and we regret that we have to disagree with the appreciation of evidence made by the learned single Judge with regard to his findings on this issue. No doubt, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither jewellery nor ornaments. The learned single Judge rejected this piece of evidence on the ground that the basis for treating the marriage was void and illegal was not disclosed in the said document and the defendants had no evidence of any member of Biradri who participated in the alleged settlement. The learned Judge, further inferred that the other Nanak Chand (Public Witness 10) executed this document to get rid of the claim for maintenance against him. In the suit for injunction, defendant No. 1 drafted questions (Ex. D/101-X) for cross-examination of the other Nanak Chand and Rattan Lal. Those draft questions were produced and they supported that inference. Rattan Lal had deposed, vide Ex. D-1/104-X that since the Saptapadi did not take place, the marriage was invalid. In the suit for maintenance this Rattan Lal had deposed that Bimla Devi was previously married to Nanak Chand and that though she did not get divorce but before the court they did separate from each other by Tyag by Ikrarnama (Ex. D-1/54). The learned single Judge concluded that the version of the defendants in respect of the marriage between Bimla Devi and the other Nanak Chand was fantastic and had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard and hold that Bimla Devi could legally marry defendant No. 1 Nanak Chand. She really did so, and, Therefore, she and her sons are entitled to share in the partition. (14) The other contention that came up for consideration was whether in the life tune of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal others, Air 1918 Lahore 291 and Sri Ram v. Collector, Air 1942 Lah 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal Rfa 1-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, Therefore, propose to dilate any more on this issue. (15) Now, as said in Rukhmabai (supra) there is a presumption that a family is joint but there is no presumption ' that any property whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the defendant himself. If correct calculations were made the yearly rental income according to the Income Tax returns should work out to ₹ 696. There were placed on record the photostat copies of some of the rent notes and the court directed that; the originals need not be produced. No cross-examination was directed regarding that part of the testimony of defendant No. 1 and the statement of defendant No. 1 should have been accepted as true. It was also urged that the learned Judge ignored the letter dated 21-1-1934 (Ex.D1/78) in which Banarsi Das wrote in answer to a query by the Punjab National Bank, that the shares of the Punjab National Bank Ltd. held by him were his self-acquired property. He asked the Bank that the shares in his name and in the name of Nanak Chand should on spotting up be issued in the name of Nanak Chand as he had waived all the rights in favor off Nanak Chand. No doubt as stressed by the learned Judge, the defendant had in the suit before the Sub-Judge K. C. Dewan, Ravinder Kishore v. Nanak Chand, omitted in his reply Ex. Public Witness 7/1, dated 22-11-1963 the line either from my own salary or from bonus shares received from the company but i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when he was a student of Higher Secondary class he worked as an agent of Premier Motors (P) Ltd., though the financial condition of the family at that time was better than at the time when defendant No. 1 did tuition work. Viewed in this light, the findings of the learned Judge call for a reversal. (17) We have considered the points of attack on the findings of the learned single Judge but find no reason to alter them. We agree that shares of such huge amounts could not be plied up without the assistance and nucleus of a joint family income chiefly out of the landed property. The earnings by tuition and salary could not have made up the funds to purchase these shares. By allocating some shares of P.N.B. in the name of Nanak Chand does not mean that these were purchased out of the earnings of Nanak Chand. Even Nanak Chand did not make such a claim in his reply Ex. Public Witness 7/1 or 22-11-1963. That is why Nanak Chand destroyed the registers which contained the true chronicle of purchase of the shares. We have already noticed how Nanak Chand himself continued to count these assets as those of H.U.F. There is thus every piece of evidence demolishing the case now set up by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63. After due consideration, we see no reason to interfere with this finding. Plots : (22) The respondents challenged the findings of the learned trial Judge that the plots were self-acquired property of the defendant. The learned single Judge had found that the payments made by defendant No. 1 for the purchase of the plot at Shalimar Garden Extension, were made out of the personal income, nor was the land situated near Mehrauli acquired for the joint Hindu family for the reason that the said Huf already possessed one residential house in Delhi. The learned single Judge was correct in holding that defendant No. 1 became a member of the society for acquiring the plot for his own benefit and not for and on behalf of the joint family. We agree with him that these plots were self-acquired properties. Needle Boxes : (23) The appellants challenge the findings that 31 needle boxes constituted the joint Hindu family property even though there was no reference to these needle boxes in the notice Ex-D/10 in which the entire joint family property was detailed by the plaintiffs and the Explanation for the omission was the flimsy excuse put forth by Chander Kishore that it was due to lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the sale of house No. 3895 in 1958. The learned Judge was correct in saying that in the absence of any allegation of misappropriation against the father and Karta, one has to presume that it was sold for the benefit of the family and the price was perhaps utilised in maintenance of the family or in some of the investments. (28) The learned single Judge had held that the plaintiffs were also liable to account for the receipts and the outgoings of the shares held by them in Dcm Pnb and Hgf, and that defendant No. 1 would not be liable to account for any estate or dealings prior to May, 1963. We cannot find fault with these directions. Before the disruption of the family, it is not possible to ask the Karta for accounts. (29) It was urged that the learned single Judge was in error in holding that the plaintiffs and defendants 2 and 3 will be liable to account for holdings since May, 1963 in respect of Income receipts, sales of shares including accretion in shares without allowing deductions regarding expenses incurred by them during the said period for the maintenance and welfare of the family and education of the plaintiffs. Here again equity and fairness demands that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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