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High Court Of Delhi
PRAN NATH KAUSHAK - Appellant
Versus
RAJINDER NATH KAUSHIK - Respondent
Suit 287 of 1978
Decided On : 02/19/1985
PARTITION - JOINT HINDU FAMILY PROPERTY - SEVERANCE OF JOINT STATUS - AWARD BY ARBITRATOR - EFFECT - DEEMED PARTITION UNDER SECTION 6 OF THE HINDU SUCCESSION ACT - APPLICABILITY - OBJECTIONS UNDER ORDER 21 RULE 97, CIVIL PROCEDURE CODE - MAINTAINABILITY.
Fact of the Case:
A suit for partition of a property was filed by one of the three brothers against the other two brothers. The property was constructed by their father, who had obtained a perpetual lease of the plot in 1954. The father died in 1962, and an award was given in March 1963 by an arbitrator, which was later made a rule of the Court. The award declared the three brothers as absolute owners of the property, and the sister relinquished her claim in the same. During the course of the trial, it came out that the actual possession of the property was with the eldest brother, Rajinder Nath Kaushik, who had inducted his wife's brother L. N. Misra as a caretaker. The plaintiff, Pran Nath Kaushik, was not allowed to occupy the first floor of the property by L. N. Misra. A preliminary decree for partition was passed, and the property was put to auction between the three brothers. It was purchased jointly by the plaintiff and defendant No. 2. The two sons of Rajinder Nath, Rajiv and Sanjay, filed objections under Order 21 Rule 97, Civil Procedure Code, asserting that the property being ancestral and belonging to the joint Hindu family, they had acquired interest in the same by birth and, therefore, their rights could not be eliminated as a result of sale in favor of plaintiff and defendant No. 2. A third son of Rajinder Nath, Ajay, also filed a similar petition under Order 21 Rule 97, setting up the case that the property was ancestral and joint Hindu family in which he has acquired a right by birth.
Finding of the Court:
The court held that the award by the arbitrator resulted in the severance of the joint status of the brothers, and that the property was not joint Hindu family property. The court also held that the provisions of Section 6 of the Hindu Succession Act did not have the implication of a partition between members of the joint Hindu family as such when one male member dies, but only in the share of the deceased at that time. The court further held that the objections of the sons of Rajinder Nath were not maintainable, as they had no right in the property.
Issues: 1. Whether the award by the arbitrator resulted in the severance of the joint status of the brothers? 2. Whether the property was joint Hindu family property? 3. Whether the provisions of Section 6 of the Hindu Succession Act had the implication of a partition between members of the joint Hindu family as such when one male member dies? 4. Whether the objections of the sons of Rajinder Nath were maintainable?
Ratio Decidendi: 1. The court held that the award by the arbitrator resulted in the severance of the joint status of the brothers, as it declared the three brothers as absolute owners of the property, and the sister relinquished her claim in the same. Absolute ownership is incompatible with coparcenery or joint Hindu family. 2. The court held that the property was not joint Hindu family property, as it was acquired by the father with his own funds, and there was no presumption that it constituted his joint Hindu family property. 3. The court held that the provisions of Section 6 of the Hindu Succession Act did not have the implication of a partition between members of the joint Hindu family as such when one male member dies, but only in the share of the deceased at that time. 4. The court held that the objections of the sons of Rajinder Nath were not maintainable, as they had no right in the property, as the joint status of the brothers had been severed by the award, and the property was not joint Hindu family property.
Final Decision: The court dismissed the objections of Ajay, the third son of Rajinder Nath, and directed that the suit come up for consideration of the passing of the final decree on 27-2-1985.
( 1 ) IT is not unoften that when a person tries to over-reach and deprive the others of their share in property, the action recoils and he turns out to be the worst loser. That is what is sometimes called the inevitable run of karma .
( 2 ) PT. Som Dutt Kaushik, who retired as an Under-Secretary in the Government of India obtained a perpetual lease of the plot bearing No. 215 Jor Bagh, New Delhi in 1954 and paid Rs. 6,850. 00. Soon thereafter he constructed a double storeyed house thereon with a barsati on the second floor at a cost of about Rs. 47,000. 00. The entire family which was constituted of Pt. Som Dutt, his three sons and one daughter started residing in the same. Som Dutt s wife had died much earlier in the forties. Som Dutt himself died in April, 1962.
( 3 ) AS a result of an arbitration between the four children of Som Dutt, an award was given in March 1963 and got registered. It was later made a rule of the Court. In terms thereof, each of the three brothers got equal share in the property and the sister purported to relinquish her claim in the same.
( 4 ) IN March 1978 the present suit was brought by one of the sons Maj. Pran Nath Kaushik for partition of this property and the defendants impleaded were his two brothers. During the course of the trial, it came out that the actual possession of the property was with Rajinder Nath Kaushik defendant No. 1 who was the eldest of the three brothers. The other two brothers had been earlier posted outside Delhi. Rajinder Nath initially was in occupation of ground floor, but later obtained possession of the first floor also from where the Lever Brothers, who were tenants vacated in 1976. In this portion Rajinder Nath inducted his wife s brother L. N. Misraand termed him as a care taker. In the meanwhile Rajinder Nath was also posted outside India. He had, however, kept his belongings on the ground floor. The plaintiff in the meanwhile retired from army service and having come to Delhi wanted to occupy the first floor. He was not allowed to do so by L. N. Misra. This was the plight meted out to a brother who was equally a co-sharer. Rajinder Nath preferred his wife s brother to his own though in letters written to him he continued to show all platitudes towards him. Pran Nath had as such to stay in the residential accommodation which his wife as employee of the All India Institute of Medical Sciences had been allotted in the Institute.
( 5 ) RAJINDER Nath defendant No. 1 resisted the suit for partition and raised various claims over the property in his favour on account of the money spent in its construction as well as the marriage of the sister. All these were negatived and a preliminary decree for partition holding that each brother had l/3rd share was passed on 11-12-1981. Similar decree for accounts was also passed as the plaintiff had been contending that Rajinder Nath had been realising the rents of the property which had not been accounted to him as well as to defendant No. 2. A Commissioner was then appointed for partitioning the property by metes and bounds as well as going into accounts.
( 6 ) SO far as the property is concerned, it being found impartible, was put to auction between the three brothers. It now stands purchased jointly by the plaintiff and defendant No. 2 and the sale has been duly confirmed. The bid given was of Rs. 15 lacs which was the reserve price in that auction. They have deposited Rs. 5 lacs payable to Rajinder Nath. His attempt to get the confirmation of sale set aside failed in appeals.
( 7 ) WHEN these two brothers proceeded to take possession of the property, L. N. Misra set up a claim of tenancy in his favour. This was negatived by Luthra, J. and he was required to vacate the premises in his possession and hand over peaceful possession to both the plaintiff and defendant No. 2. He went up to the Supreme Court to challenge this order but without success. The first floor and the second floor have now been taken into possess
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