1982 Supreme(Del) 159

High Court Of Delhi
NANAK CHAND - Appellant
Versus
CHANDER KISHORE - Respondent
REGULAR FIRST APPEAL 5 of 1977
Decided On : 05/24/1982

Headnote:

PARTITION - JOINT HINDU FAMILY - DISRUPTION OF STATUS - SEVERANCE OF JOINT STATUS - NOTICE - LIMITATION - ADOPTION - WILL - JOINT FAMILY PROPERTY - PRESUMPTION - BURDEN OF PROOF - SHARES - DEPOSITS AND BANK ACCOUNTS - PLOTS - NEEDLE BOXES - ORNAMENTS AND JEWELLERY - SCOOTER - MONEY DEPOSITED IN GOODWILL FINANCE CORPORATION - DIRECTIONS - COSTS.

Fact of the Case:

The plaintiffs, the sons of Nanak Chand, appellant, born of Raj Rani, served a notice (Ex. D1/10), on him on 17-5-1963 intimating that they have been living separately and that he had not given them their share of the properties and income therefrom and has evaded partition of the properties by mates and bounds. They demanded accounts of all the properties, rent, income and partition within aweek. The plaintiffs then filed a suit on 27-8-1963 in the court of the Sub-Judge for permanent injunction restraining the defendant Nanak Chand from transferring the properties and shares and from acting on their behalf and from interfering with the peaceful enjoyment of the property.

Finding of the Court:

The learned single Judge held that the joint status shall be deemed to have disrupted on 17-5-1963. It was on the basis of this date that he proceeded to record his findings as to the properties which stood as joint in May, 1963.

Issues: 1. Whether the suit was within limitation? 2. Whether the properties held by Banarsi Das were held by him as a sole surviving co-parcener before the adoption by him of Nanak Chand who succeeded to properties not on account of the said adoption but on account of the bequest made in the deed of adoption (Ex. D1/55) executed on 29-3-1927 and registered on 31-3-1927? 3. Whether in the life tune of the father, the sons could ask for partition or not? 4. Whether the shares purchased between 1918 and 1949 in the name of Banarsi Das were of the value of Rs. 24,566 and in the name of Nanak Chand were of the value of Rs. 36,943, total Rs. 61,529 and shares of this amount could not have been acquired with the personal income earned by Nanak Chand bysalary and tuitions as claimed by him and must, therefore, be presumed to have been acquired out of the income from the joint estate? 5. Whether the fixed deposit of Rs. 15,000 available with the Goodwill India Ltd. constituted joint Hindu family property? 6. Whether the plots were self-acquired property of the defandent? 7. Whether 31 needle boxes constituted the joint Hindu family property? 8. Whether no jewellery existed? 9. Whether the Vespa scooter DLN 8733 constituted joint Hindu family property? 10. Whether the money deposited in Goodwill Finance Corporation was joint property?

Ratio Decidendi: 1. The right to partition sprang into existence in this case when the notice of severance and demand for partition was served, but right to sue did not accrue until the defendant infringed or threatened to infringe that right. 2. The disputed words only purport to convey that after his death, his adopted son will be the owner of the properties left by him, that is to say that during their life time they both will hold the property as co-perceners and after his death the property will certainly pass on to Nanak Chand, defendant No. 1 subject, of course, to all legal incidences. 3. In Delhi like Punjab they could not do so. It was based upon some custom. 4. The shares of such huge amounts could not be plied up without the assistance and nucleus of a joint family income chiefly out of the landed property. 5. The deposit was made in 1958 and could not have accumulated without the nucleus of joint family income. 6. The payments made by defendant No. 1 for the purchase of the plot at Shalimar Garden Extension, were made out of the personal income, nor was the land situated near Mehrauli acquired for the joint Hindu family for the reason that the said HUF already possessed one residential house in Delhi. 7. Out of 31 needle boxes, 9 had been disposed of and only a balance of 22 boxes were delivered to Nanak Chand on behalf of Bhagwati Devi. 8. There was no definite and reliable evidence except the bare statement of Chander Kishore (Public Witness 7), there was no option put to reject the claim that there was any joint family jewellery. 9. The money for purchasing it should have come out of the joint family property income. 10. The amount will be treated as joint property.

Final Decision: Appeal and cross-objections dismissed except that the shares of the members shall be 1/7th each in place of 114th each.