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2014 Supreme(Del) 343
High Court of Delhi
THE HONOURABLE MR. JUSTICE S. RAVINDRA BHAT & THE HONOURABLE MR. JUSTICE NAJMI WAZIRI
Swaran Lata & Others
Versus
Kulbhushan Lal & Others
RFA (OS) No. 11 of 2010, C.M. No. 1950 of 2010
Decided On : 31-01-2014
For the Appellants:Suresh Singh, Rajneesh Chaudhry, Advocates.
For the Respondents: Nemo.
Headnote:
Hindu Succession -Right of a male member - Right of a male member arises by birth but is ascertained only on partition - Interest of a member in the undivided property is not an individual property but is fluctuating interest liable to be diminished by births or deaths in the family - Though the traditional Hindu law did not recognize a deemed partition but there is a clear statutory departure from this method of division of the property by proviso to unamended Section 6 of The Hindu Succession Act 1956 - However the proviso is limited and the effect of the proviso does not mean that the shares in the coparcenary property would be decided according to that event or shares would have been crystallized and become unalterable - On the contrary the coparcenary continues and the extent of share is to be decided at the time of actual partition either through registered deed of partition or a decree of Court.
Hindu Succession Act, 1956 -Section 6 - Amendment by Act of 2005 - Amending Act of 2005 unambiguous that no past partition or testamentary position of the property is to be effected or reopened in order to include newly created shares of a female members of HUF in the coparcenary - However, only partitions made by execution of a duly registered partition deed of partition or effected by decree of a Court is recognized as valid which had occurred the before cut-of-date the extension partition is continued in Section 6 by the Parliament, which are left unaffected by the amendment - Notion that partition occurs as on the date of death of a male member and the shares are crystallized into the vested right at that point is not the correct preposition - Neither the proposition that the shares are divided at the time of filing of the suit for partition is correct - On the contrary HUF and specifically coparcenary continues even after filing of the suit until a decree of Court effects partition or registered deed of partition is singed inter-se parties as such any change in law during the pendency of suit as for example Section 6 of the Hindu Succession Act, 1956 would effect the ultimate share of parties.
S. Ravindra Bhat, J.
% C.M. NO. 1950/2010 ( for condonation of delay)
For the reasons mentioned in the application, C.M. No. 1950/2010 is allowed.
RFA (OS) 11/2010
1. This is an appeal from an order of the learned Single Judge, whereby a suit for partition filed by sisters was dismissed. The orders of 19.04.2012 and 11.01.2013 reveal that the first three respondents (contesting parties in the suit) were served, despite which appearance had not been entered by them. The order of 11.01.2013 accordingly recorded that service was complete. It was in these circumstances that the appeal was heard finally and reserved for judgment. Before addressing the specifics of the properties involved in this partition suit, it is useful to record the family structure involved in this case.
2. The plaintiffs, three sisters filed the suit in 1990 [CS (OS) 2400/1990] against two brothers (the first two defendants/respondents) and two sisters (third and fourth defendants). A third brother, Sudarshan Lal, had died on 1st February, 1978, before the institution of the suit, as a bachelor. The family thus had consisted of five sisters and three brothers. Their father was Bakshi Ram, who died on 10th February, 1960, and their mother was Smt. Chanan Devi, who died on 3rd August, 1978. As regards Sudarshan Lal, the son of Madan Mohan Sharma, the second defendant, one Prem Prakash Sharma claimed that Lal had left a will in his favour, and that under the will so set up, any share in the property Lal had stood bequeathed to him. For this, he relied on Probate Case No. 34/1988, which he had filed before the institution of the present suit in respect of Lal’s will. Although the probate case was decided in Prem Prakash Sharma’s favour by an order dated 19th August, 2005 (the appeal against which, filed by Swaran Lata, as FAO(OS) 103/2005 was dismissed), the learned Single Judge by order dated 25th April, 2008 did not allow him (Prem Prakash Sharma) to be impleaded in the suit. However, the senior counsel for Prem Prakash Sharma was also heard by the Single Judge.
3. The case of the plaintiffs was that prior to the partition, the late Bakshi Ram and his family were settled in a part of Punjab that is now in Pakistan. At the time, the family was a HUF and Bakshi Ram, as karta, was running various businesses (as a contractor, and running a petrol pump) at the time. These businesses, it is claimed, were being run under the name and style of “Bakshi Ram & Sons”. It is alleged that after partition, Bakshi Ram alongwith his family shifted from Pakistan to India, and submitted his claims with the Ministry of Rehabilitation (in India) with regard to various assets and properties concerning his businesses and also houses and other property left behind by him in Pakistan. The name of the applicant was “Bakshi Ram & Sons”, through Bakshi Ram as the karta, and the address mentioned was 16/229, Joshi Road, Karol Bagh, New Delhi. Thus, the plaintiff urged that the claim was made by the late Bakshi Ram as the karta on behalf of a HUF.
4. As regards the properties left behind in Pakistan, the plaintiffs claimed that Bakshi Ram had purchased a factory site in the name of the firm “Bakshi Ram & Sons” sometime in the year 1930. Further, the plaintiffs state that he was the sole proprietor of a rice flour mill. The plaintiffs also claim that Bakshi Ram owned a petrol pump of the Burmah Shell Company, which he was running in Sheikhpura (which is now in Pakistan). Finally, the plaintiffs state that various business assets as well as various residential properties were acquired/built by Bakshi Ram “whether in his personal name or in the name of Bakshi Ram & Sons, a Joint Hindu Family firm …”
5. The suit alleged that post partition Bakshi Ram was allotted various properties in lieu of those left behind in Pakistan. First, the Burmah Shell Company allotted a petrol pump in Badarpur, Tehsil Mehrauli, Delhi to M/s. Bakshi Ram & Sons, a HUF firm, of which Bakshi Ram was karta. In additio
