(August 31, 2001) 2001 (TLS)125858

2002-DLT-95-115 :: 2002-AD (Del)-4-627

KEWAL KRISHAN MAYOR Vs. KAILASH CHAND MAYOR

DEVINDER GUPTA

( 1 ) THESE two first appeals arise out of the judgment and decree passed on 27/5/1976 by learned single Judge of this Court partly decreeing the suit of plaintiff. RFA (OS) 31/76 is by the plaintiff Dr. Kewal krishan Mayor and RFA (OS) 37/76 is by defendant No. 1 kailash Chand Mayor. Bal Mukand Mayor s/o Dina Nath had three sons

( 2 ) AND two daughters, namely, Brahm Dutt, Dr. Kewal Krishan (plaintiff) and Kailash Chand (defendant No. 1), (sons); brahm Wati and Raj Kumari (defendants 2 and 3), (daughters ). Lal Devi wife of Bal Mukand died on 9/11/1965. His eldest son Brahm Dutt also expired on 14/6/1969. Brahm Dutt is survived by his widow Smt. Prakash Mayor and two children, namely, Anil and Neelam (defendants 4 to 6 ). Bal Mukand died on 27/6/1973.

( 3 ) ON 30/11/1973 Dr. Kewal Krishan (hereinafter referred to as the plaintiff) filed a suit claiming a decree for partition of the property left by Shri Bal mukand. Kailash Chand Mayor was impleaded as defendant no. 1. Brahm Wati and Raj Kumari were impleaded as defendants 2 and 3 and the heirs of Brahm Dutt were impleaded as defendants 4 to 6. It was alleged that Bal mukand constituted a joint Hindu family with the plaintiff and defendant No. 1. In his life time Bal mukand made a declaration on affidavit dated 4/3/1963 and on that day threw his property 8/10 and 8/11, western Extension Area, Karol Bagh, New Delhi into the common hotch potch of his Hindu undivided family comprising himself and his two sons. Bal Mukand was also assessed in income tax and wealth tax as head of hindu undivided family owning the aforesaid property.

( 4 ) IN addition to the aforementioned property, which Bal mukand had thrown into common hotch potch, he also held other properties in his individual capacity. The plaintiff alleged that on the death of Bal Mukand on 27/6/1973 a notional partition of the joint Hindu family property took place and in that notional partition the plaintiff and defendant No. 1 got 1/3rd share each whereas remaining 1/3rd was left with deceased, which was inherited in equal shares by the plaintiff, defendant No. 1 defendants 2 and 3 and the heirs of brahm Dutt, namely defendants 4, 5 and 6. Likewise the individual properties of Brahm Dutt were inherited in equal shares by the plaintiff; defendant No. 1, 2 and 3 and by the heirs of Brahm Dutt, namely, defendants 4 to 6. The plaintiff alleged that the defendants were requested several times to have the property partitioned but they had failed to do so, therefore, cause of action had arisen to him on 25/11/1973 to file the suit on failure of the defendants to have the partition. He accordingly prayed that the properties be partitioned in accordance with the shares mentioned in para 13 of the plaint.

( 5 ) THE suit was contested by defendant Kailash chand Mayor only. In addition to various preliminary objections he denied that Bal Mukand constituted a joint hindu family with the plaintiff. Rather he pleaded that the plaintiff had been separated from his father after he passed his medicine in 1945 and had always lived separately and also kept his income separately. He had nothing to do with the joint. Hindu family comprising late Bal Mukand and defendant No. 1. It was pleaded that defendant No. 1 was the only surviving coparcener in the joint Hindu family. Defendant No. 1 denied the deceased having sworn any declaration of throwing the two properties in common hotch potch and pleaded that if such a document exists the same is a sham document and there is evidence that such a statement made by the deceased was incorrect. He pleaded that no joint family could be created by such a document. Defendant No. 1 further pleaded that the plaintiff had in fact misbehaved with his father and the mother, when they came to India, as refugees, after partition of the country. He also pleaded that on th