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High Court Of Delhi
KISHAN DASS TALWAR - Appellant
Versus
ADESHWAR LAL JAIN - Respondent
Suit 47 of 1969
Decided On : 03/25/1976
PARTITION - Transfer of Property Act (4 of 1882) - Section 53 - Partition of joint Hindu family property - Whether amounts to transfer - Held, No - Partition is not a transfer within the meaning of Section 53 of the Transfer of Property Act, 1882.
Fact of the Case:
Plaintiffs claimed that the decree for partition dated April 3, 1968 in Suit No. 680 of 1967 (Shri Nagesh Chand Jain and Others v. Shri Adeshwar Lal Jain) obtained from the High Court of Delhi is a nullity so far as the plaintiffs and other creditors are concerned and the same is not binding on them as it was obtained by fraud, by mis-representation of facts, by wilful concealment of facts and due to direct collusion of defendants Nos, 1 to 5.
Finding of the Court:
The partition decree is not a collusive or sham transaction between the parties but was really intended to be acted upon. Defendants 2 to 4 claimed partition to safeguard their future interest in the ancestral property. It may be that the object of defendants 2 to 5 was to prevent their share being transferred or alienated by defendant No. 1 or for being made out of the reach of alienation by defendant No. 1 for the discharge of his antecedents personal debts. It may be that defendants 2 to 5 did not desire defendant No. 1 to incur any further debts on the strength of the joint Hindu family property. But it was certainly a partition meant to operate between the parties and could not be considered as collusive but may at best be termed as mala fide.
Issues: 1. Whether the firm Dhoomimal Dharamdass was ever a joint Hindu family concern and on partition between defendant No, 2 and his father and/or brothers came to his share ? 2. If issue No. 1 is proved in the affirmative, whether the business which came into the hands of defendant No. 1 continued to be a joint Hindu family business of defendants 1 to 5 ? 3. Whether defendant No, I or M/s. Dhoomimal Dharamdass contracted any debts ? If so, in what capacity ? 4. Whether defendants 2 to 5 are liable for any debts of defendant No. 1 and/or M/s. Dhoomimal Dharamdass ? 5. Whether the partition of the property by virtue of decree in Suit No. 680 of 1967 amounts to a transfer? 6. If the partition amounts to a transfer whether the partition decree was obtained by fraud as alleged and is liable to be set aside ? 7. Whether the decree dated 3rd April, 1968 in Suit No. 680 of 1967 was a collusive decree, and if so. with what effect ? 8. Relief.
Ratio Decidendi: Partition of the property by virtue of decree in suit No. 680 of 1967 does not amount to a transfer within the meaning of section 53 of the Act. The impugned partition decree is not a collusive or sham transaction between the parties but was really intended to be acted upon. The object of defendants 2 to 5 was to prevent their share being transferred or alienated by defendant No. 1 or for being made out of the reach of alienation by defendant No. 1 for the discharge of his antecedents personal debts. It may be that defendants 2 to 5 did not desire defendant No. 1 to incur any further debts on the strength of the joint Hindu family property. But it was certainly a partition meant to operate between the parties and could not be considered as collusive but may at best be termed as mala fide.
Final Decision: Suit dismissed.
( 1 ) THE plaintiffs in this suit claim that the decree for partition dated April 3, 1968 in Suit No. 680 of 1967 (Shri Nagesh Chand Jain and Others v. Shri Adeshwar Lal Jain) obtained from the High Court of Delhi is a nullity so far as the plaintiffs and other creditors are concerned and the same is not binding on them as it was obtained by fraud, by mis-representation of facts, by wilful concealment of facts and due to direct collusion of defendants Nos, 1 to 5. The said partition decree is alleged to have been obtained with an intent to defeat and delay the claims of the creditors and is sought to be avoided by claiming a decree for a declaration to the same effect.
( 2 ) IT would be necessary to give a short narrative of the material facts leading to the filing of the present suit. A firm M/s. Dhoomimal Dharamdass was started in or about the year 1886 by some ancestors of defendants 1 to 4. The ancestors of defendants 1 to 4 also acquired certain immovable properties. In the year 1948 the firm M/s. Dhoomimal Dharamdass was a joint Hindu family concern of the father of defendant No. 1 and his three brothers. The family also owned several properties. M/s. Dhoomimal Dharamdass continued to be the joint Hindu family business till 1948 when the joint Hindu family was disrupted and the movable and immovable properties were partitioned. There was an award given on February 20, 1948 (though different dates have been given in the pleadings of the parties ). This award was duly registered on May 4, 1948 and related to the partition of the movable and immovable properties and the family firm M/s. Dhoomimal Dharamdass. It is the admitted case of the parties that according to the said award, house No. 3709-3711 Dhoomimal Street, Chooriwalan, Chawri Bazar, Delhi and the stock in trade etc. valued at Rs. 46,401/5/3 fell to the share of the branch of the family of Shri Darogha Mal who being insane was acting through his wife as his guardian and Shri Adeshwar Lal son of the said Shri Darogha Mal. Shri Adheshwar Lal, after the death of his father became karta of the family and on the relevant date of the partition decree the aforesaid immovable property was the joint Hindu family property of Shri Adeshwar Lal, defendant No. 1. his three sons, defendants 2 to 4 and Smt. Kapuri Devi widow of late Darogha Mal, defendant No. 5. According to the additional pleas in the written statement of defendants 2 to 5 on the disruption of the family in 1948 the business of M/s. Dhoomimal Dharamdass was carried on in partnership with four sets of partners, namely (i) Lala Jugal Kishore, (ii) Lala Ram Chand, (iii) Adeshwar Lal and Smt. Kapuri Devi and (iv) Smt. Chambeli Devi and her minor son Vishal Chand. According to the statement of Shri Kishan Dass Talwar plaintiff No. 1, as Public Witness -2. the four brothers, namely Jugal Kishore, Ram Chand, Vishal Chand through Smt. Chambeli and Daroga Mal carried on this firm M/s. Dhoomimal Dharamdass as a partnership firm and it went on as a partnership firm uptill 1958. According to the defendants there was a change in the constitution of the partnership firm in 1954 and the changed partnership carried on business up to 1958 when the firm M/s. Dhoomimal Dharamdass was dissolved. The case set up by the changed partnership carried on business up to 1958 when the firm Lal became the sole proprietor of the business under the name and style of M/s. Dhoomimal Dharamdass and he carried on this business. The case of the plaintiffs on the other hand is that in 1958 by mutual consent this firm M/s. Dhoomimal Dharamdass was transferred to Shri Adeshwar Lal as karta of the joint Hindu family and he carried on this business as such.
( 3 ) ON April 14, 1967 a petition under section 9 of the Provincial Insolvency Act, 1920 was filed by one creditor Shri Chander Bal Kakkar for adjudging Shri Adeshwar Lal and the firm M/s. Dhoomimal Dharamdass as insolvents. This petition was admitted by the Insolvency Judge, Del
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