Gokal Chand Mital, CJ. (Oral)

( 1 ) IN order to appreciate the controversy, the following pedigree table may be kept in view:banwari Lal was the Karta of the joint Hindu family and the joint Hindu family had substantial joint Hindu property and business. On 27th March, 1942, Banwari Lal died, leaving behind, his widow, Smt. Roop Devi and three sons, namely, Murari Lal, Amar Nath and Dewan Chand. Murari Lal was the eldest son and, therefore, he became the Karta. On 10th July, 1942, the coparcenary was dissolved and on 26th June, 1943 adeed of settlement/partition was executed between the coparceners and their mother, Smt. Roop Devi, as on partition of joint Hindu family, besides some cash, she was given the ownership of a three storeyed house on plot No. 49, Block G, Lekhram Road, Darya Ganj, Delhi. In plot, the erstwhile, Hindu undivided family had held perpetual lease hold rights. The translation of the relevant recital is reproduced herein below:

"the property which have fallen in the share of Smt. Roop Devi - Party No. 4 that cannot be mortgaged, sold, gifted etc. and cannot be put-in the surety etc. . i. e. the same cannot bealienated in any way by the said Smt. Roop Devi. All the four parties shall reside in the abovementioned house. The present and the future electric, house-tax, water bills and other taxes regarding the said building shall be paid by the first, second and third parties in equal shares. Any party cannot give the house to any one for use nor any party can alienate the property in any way in his life time and no party shall disturb in the residence of Smt. Roop Devi. Must Roop Devi shall remain the owner of the lease hold rights and structure of the said building in her life time. The mutation will be effected on the Municipal Committee or improvement trust, where required. That the said propty shall be owned and possessed by the first, second and third party after the death of Smt. Roop Devi, and they shall get full rights. Smt. Roop Devi does not claim any share from the estate of L. Banwari Lal deceased, except the said house and the amount which has fallen in the share of Smt. Roop Devi - party No. 4. But she also gives up all her claims by her own will from all her rights from the estate of L. Banwari Lal and she will not claim in future about those rights. The property situated at Connaught Circus, New Delhi known as Aggarwal Building, Plot No. 3, Block M, shall be owned and possessed by parties No. 1, 2 and 3 in equal shares, which is from the estate of Banwari Lal. Smt. Roop Devi has no concern with this property. That each of the party have taken the possession of his own moveable and immovable property and share. No party has any concern with the property of other party, (emphasis is ours ). "

( 2 ) ON 17th June, 1956, Hindu Succession Act came into force and by virtue of Section 14 (1) of the Act, whatever property she got under the settlement deed of 26th June, 1943, became the full ownership of Smt. Roop Devi and she ceased to have a restricted widow s estate. There is a string of authorities of the Supreme Court in this behalf that where a Hindu female is given immovable property in recognition of her pre-existing right, she becomes the full owner thereof by virture of section 14 (1) of the Act and the limited estate which she held immediately before coming into force of the Act, got converted into full ownership.

( 3 ) ON 18th October, 1961, Murari Lal died and on 4th November, 1971 the two sons of Murari Lal filed a suit for declaration against their grand-mother and uncles to the effect that they are onwer of l/3rd undivided share in the immovable property of Darya Ganj along with the perpetual lease-hold rights in the plot and in the alternative prayed that they will have absolute ownership of l/3rd share in the said property on the death of smt. Roop Devi and yet prayed in the alternative that in respect of the portion occupied by them in the house of Smt. Roop Devi, they have become owners

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