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SUPREME COURT OF INDIA
A.N.Grover : J.C.Shah : K.S.Hegde
Raja Karan Pershad
Versus
Kunwar Rani
Case No. : 1048 of 1967
Date of Decision : 3/16/70
Hindu Succession Act, 1956 – Section 14 – Partition – This is an appeal from a judgment of the Andhra Pradesh High court – Trial court held that Raja Kundan Lal had no independent source of income and the Jagir income was the exclusive property of Rani Rukimini Bibi. – Properties acquired by Raja Kundan Lal in these circumstances must be deemed to be the properties of Rukimini Bibi. – It was also held that there was no evidence that Raja Kundan Lal left any nucleus of joint family properties. – Trial court came to the conclusion that the property in dispute in Schedule A was not coparcenary property and the suit was dismissed. – On appeal the High court reserved the decision of the Trial court in respect of properties covered by Schedule A. – It was held that Raja Kundan Lal had independent source of income for acquiring the land and had sufficient amounts to construct on that land. – As defendant No. 2 had not claimed any share in partition the High court ordered that the plaintiff would be entitled to half share in the Schedule A properties. – Held, Court have ourselves persued the evidence to which our attention was invited by the learned counsel for the appellant and court is satisfied that, from the entire facts and circumstances as also the documentary and other evidence,. Raja Kundan Lal was the owner of Schedule A properties. – Evidence which was led by defendant No. 1 was hardly sufficient to discharge the burden which lay upon him in the circumstances of the present case to establish that these properties belonged to him exclusively and did not form a part of the joint family estate. – There was a disruption of the coparcenary as soon as Jitender Pershad instituted the suit for partition. – Defendant No. 2 became entitled to 1/3 share and merely because she did not ask for any share specifically in her written statement she could not be denied her share on partition taking place in the absence of any proof that there had been abandonment or waiver on her part of her rights and interests. – It is very doubtful if such abandonment or waiver can be inferred merely by not asking specifically for a share. – It must be remembered that in her written statement defendant No. 2 had fully supported the case of defendant No. 1. – It was immaterial if she did not say that she should be given her share if the court granted a decree for possession by partition to the plaintiff. – It would further appear that after the enactment of the Hindu Succession Act, 1956, the interest of defendant No. 2 became absolute under the provisions of Section 14(1) of that Act once the shares became ascertainable by severance of the joint family status on institution of the suit by the plaintiff. – She could not lose her absolute rights in her share by an omission to make a specific claim to it in the written statement which she filed in the present suit. – In this view of the matter it is not disputed that the plaintiff would be entitled only to 1/3 share in the Schedule A properties. – Appeal Dismissed
A.N.GROVER, J.
(1) THIS is an appeal from a judgment of the Andhra Pradesh High court. The following geneological table showing the relationship of the parties and other persons so far as relevant for the purpose of this appeal is as follows:
Prior to the year 1900 certain disputes arose between Raja Behari Pershad and Maharaja Kishen Pershad. These disputes were settled by the Firman of the Nizam. The Jagir villages of Raja Behari Pershad were handed over to Maharaja Kishen Pershad for management. The Maharaja was made responsible for payment of Rs. 30,000.00 yearly in three instalments to Raja Behari Pershad. Raja Behari Pershad continued to receive this amount till his death in the year 1906. After his death Maharaja Kishen Pershad wanted to reduce the annual amount of payment to the heirs of Raja Behari Pershad to Rs. 15,000.00. The matter went to the Nizapi again who directed on 21/03/1914, that the full amount of Rs. 30,000.00 was to be paid to the heirs of Raja Behari Pershad. On 27/01/1910, Raja Kundan Pershad who had married Rani Rukimini Bibi the only daughter of Raja Behari Pershad purchased, by means of a sale deed executed by Mohammed Hussain, 66 Bighas of land situate in Hyderabad city for Rs. 13.20 of the Mehboobia currency (equivalent to approximately Rs. 1.000/ of Indian currency). On 16/10/1920, he sold to one Waman Ramchandran Naik, 16 Bighas of land out of 66 Bighas of land for a consideration of Rs. 24,000.00 Osmania currency. From 1921 to 1929 the property known as "Kundan Bagh" was constructed. In the present appeal we are only concerned with that property which is mentioned in Schedule A of the plaint. Rani Rukimini Bibi died in the year 1932. In 1938 Jitender Pershad the son of Raja Karan Pershad the appellant married Kunwar Rani the present respondent.
(2) IT appears that after the death of Raja Kundan Lal disputes arose between the father and son namely Raja Karan Pershad and Jitender Pershad. On 5/01/1959, Jitender Pershad filed a suit impleading his father Raja Karan Pershad and his mother Smt. Brij Rani for partition and separate possession of half share in the properties mentioned in Schedules A, B, C and D to the plaint. According to his pleadings he along with his father Raja Karan Pershad constituted a Hindu undivided coparcenary family. He claimed that he was entitled to half share in all the family properties. In the written statement it was pleaded by Raja Karan Pershad defendant No, I with regard to Schedule A property that during the lifetime of his mother Rukimini Bibi and after her death Raja Kundan Lal was drawing the monies payable by Maharaja Kishen Pershad to the heirs of Raja Behari Pershad and spending the same with their consent. It was from these monies that the land had been acquired during the minority of defendant No. 1. Raja Kundan Lal had no source of income of his own and the construction of the bungalow, out houses and other appurtenant buildings known as "Kundan Bagh" was started during the minority of defendant No. Ion the land. The income or the amounts, Aid under the Nizams Firman were utilized in the construction of these buildings. It was claimed that the dealings relating to the aforesaid property were in the name of Raja Kundan Lal because originally the sale deed had been got executed in his name. It was thus asserted that the Schdule A property was not joint family property and had been acquired and built upon with the monies belonging to Rani Rukimini Bibi and after her death the first defendant became the sole owner thereof. The second defendant, namely, the mother of the plaintiff adopted the written statement of her husband defendant No. 1.
(3) THE Trial court held that Raja Kundan Lal had no independent source of income and the Jagir income was the exclusive property of Rani Rukimini Bibi. The properties acquired by Raja Kundan Lal in these circumstances must be deemed to be the properties of Rukimini Bibi. It was also he
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