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2003 Supreme(Del) 331
High Court Of Delhi
MASTER PULKIT - Appellant
Versus
KAMLESH - Respondent
Suit 1763 of 1998
Decided On : 04/03/2003
C.J.Gupta, D.K.RUSTOGI
Headnote:Partition - Suit by minor through mother — Father imp leaded as one of the defendants — Plea that plaintiffs deceased great grandfather left behind in Pakistan housing accommodation and the claims accepted by Ministry of Rehabilitation utilised for purchasing property in India — Property left behind in Pakistan not stated to be ancestral and in Probate proceedings filed by plaintiffs grandfather does not published — Plaintiffs father also a signatory to the Family Settlement which fact not mentioned in the plaint — Parties being members of a family, court to give effect to the family settlement — Conduct of the plaintiff-whether of his mother or father-dishonest — Suit dismissed with costs.
Held:
The question of whether the minor Plaintiff could have been represented by the mother, while the father is alive, has not been clarified. No application for appointing the mother as the guardian ad litem has been filed. The father, has not received a share from the Estate of late A. The can one of Hindu Law enunciate that it is the father who is the legal guardian of a minor Hindu. His signature is available on the family settlement dated 18.9.1996 and perhaps for this reason, he had decided to fight a proxy litigation on behalf of his son through his wife. The Family Settlement has not been mentioned in the Plaint and learned counsel for the it is stated that the minor, as well as his mother, were unaware of it. This position appears to be wholly incredible, especially in view of the fact that the mother has admitted that she is living along with her husband, i.e. the father of Master Pulkit. It is obvious that the manner in which the present Plaint has been filed has been carefully contrived in order to mislead the Court. An application for the appointment of a guardian ad litem has intentionally not been filed to avoid the Courts focus on this very vital aspect of the case.
There are no averments in the Plaint which would, even prima facie, show that the interests of the minor Plaintiff were not adequately safeguarded either by his parental grandfather or by his father. Since the submission put forward a fraud had been committed on the minor Plaintiff, it is imperative that pleadings to this effect should exist in the. Plaint. It is trite to state that where fraud is alleged, it must be carefully and meticulously disclosed in the pleadings itself. The Plaintiff, as well as his mother and father, are admittedly living with the childs paternal grandfather.
The failure to publish citation in the Probate proceedings would have the effect that persons, other than those mentioned as Class-I heirs in the Probate Petition, would not be bound by the decision in the Probate proceedings. Failure to publish the citation would, thereforee, restrict the efficacy of the Probate from being a judgment in rem to being a judgment in persona. Any person claiming to be a Class-I heir, who has not been imp leaded or served in the Probate proceedings, could be aggrieved by the absence of public citation of the Probate proceedings. Of course, other parties such as creditors or persons possessing independent rights in any of the assets of the Estate could also record legal umbrage. But a descendant of a living Class-I heir can have no grievance on this score. There is no material on the record to disclose that the interests of the minor Plaintiff were not adequately safeguarded by the Class-I heirs of late Shri Bodh Raj Bhola, i.e. the paternal grandfather of the Plaintiff. This absence would not make a material difference. It must also be kept in perspective that it is not mandatory for Probate proceedings to be initiated in the case of Wills of Hindus, especially in Delhi. thereforee, there is no merit whatsoever in the argument that the Probate proceedings were illegal. In any event, the Family Settlement is available. Learned counsel for the Plaintiff has interjected in the dictation to state that it is a well-established principle that where even if a minuscule interest exist, citation is necessary. I have already dealt with this proposition and need not state, any more.
The conduct of the Plaintiff — whether it is that of his mother or of his father, or for that matter of his grandfather, appears to be dishonest. The grandfather has already derived his share from the Estate of his father, i.e. the great grandfather of the Plaintiff. After this share has been obtained, the present Suit has been filed to upset the family arrangement.
The present Suit, as well as applications, are accordingly dismissed.
( 1 ) THIS Suit for partition and rendition of accounts has been filed on behalf of Master Pulkit through his mother and natural guardian, Smt. Neeta, wife of Shri Satish Kumar who has been impleaded as Defendant No. 10. In the Plaint it has been stated that late Shri Bodh Raj Bhola, the great grandfather of the Plaintiff, died on 1. 6. 1995 at Delhi. In paragraph 2 of the Plaint it has been averred that the "deceased left behind in Pakistan lot of housing accommodation and accordingly as per law, as was prevalent then, filed various claims with the Ministry of Rehabilitation and the said Ministry of Rehabilitation accepted the claims of the deceased in full. The claims were utilised for the purchase of property at Kalkaji". It is the case of the Plaintiff that from the sale of the Kalkaji house the suit property, bearing No. 8/6, W. E. A. , Karol Bagh, New Delhi has been purchased. Learned counsel for Defendant No. 3 has pointedly drawn attention to the absence of any statement in the Plaint that the property left behind in Pakistan was an ancestral property in the hands of late Shri Bodh Raj Bhola. Learned counsel for the Plaintiff has been unable to show me any statement in the Plaint to this effect and his submission is that Income-Tax Returns are available. However, it is a cardinal principle of law that evidence can be led only in respect of averments in pleadings. Since there are no pleadings to the effect that the properties in Pakistan were ancestral properties in the hands of late Shri Bodh Raj Bhola, it is impermissible to look at documents which may indicate that those properties were ancestral. On a reading of the Plaint it is manifestly apparent that so far as the properties of late Shri Bodh Raj Bhola were concerned, these were not contemplated by the parties hereto as ancestral. The fact that none of the siblings of late Shri Bodh Raj Bhola have been impleaded in the present Suit is indicative of this fact. Had ancestral properties been left behind in Pakistan, late Shri Bodh Raj Bhola, as also his siblings, would have had an equal right in those properties. I hold that the Estate of Late Shri Bodh Raj Bhola did not comprise any ancestral properties. This is also established by the fact that in the Probate proceedings filed by the Plaintiff s paternal grandfather, this position had not been asserted.
( 2 ) THERE has been a previous litigation between the parties. On the demise of late Shri Bodh Raj Bhola a Will was presented for the grant of Probate. In those proceedings the paternal grandfather of the Plaintiff, namely, Shri Jagdish Mitter Bhola, Defendnat No. 9, was the Petitioner. The other children of late Shri Bodh Raj Bhola were impleaded as Class-I heirs. In the course of that Petition a compromise was arrived at between the parties, i. e. the different Class-I heirs of late Shri Bodh Raj Bhola. There is a document dated 18. 9. 1996 available on the record which has been signed by these Class-I heirs. The compromise that was effected in the Probate case took place on 10. 9. 1996. Significantly, the father of the present Plaintiff was a signatory to that Family Settlement although as a witness. I have compared the signature of Shri Satish Kumar Bhola with his signature on an affidavit filed by him dated 3. 10. 2000 and am satisfied that the signature on the Family Settlement is that of Shri Satish Kumar Bhola. Learned counsel for the Plaintiff has attempted to assail the genuineness of this Family Settlement by drawing attention to the fact that it was executed one week after the Probate Petition was compromised and was, therefore, not a necessary document. This argument is devoid of merit. It is not in dispute that the grandfather of the Plaintiff, namely, Mr. Jagdish Mitter Bhola, Defendant No. 10 in those proceedings ( as mentioned above the Petitioner in Probate Petition) received a share in the Estate of his father, namely, late Shri Bodh Raj Bhola.
( 3 ) THE question of whether th
