Naresh Kumar and Another vs Smt. Kailash Devi and Others

N.K. Kapoor, J.—This is defendants'' regular second appeal against the judgment and decree of the District Judge, Rohtak, whereby the appeal filed against the judgment and decree of the trial Court was dismissed.

Briefly put, the facts of the case are that Purshtom Dass, predecessor-in-interest of the present respondents, filed a suit for possession by way pf partition against Chander Parkash, predecessor-in-interest of the present appellants, and others with the allegation that the parties are related to each other as per pedigree table given in para 1 of the plaint and that the property described in para No. 2 of the plaint had come to the plaintiff and defendant No. 1 Chander Parkash through their grand-father Dewat Ram. On the death of Dewat Ram, this property was inherited by the plaintiff and defendant No. 1 along with their father Madan Lal. It is further alleged that on a dispute between the parties a Civil Suit bearing No. 294 was instituted on 6.6.1972 which was decided on 23.10.1972. In this suit the parties compromised and so the suit was disposed of in terms of the compromise i.e. share of the plaintiff was separate whereas Madan Lal and Chander Parkash share was kept joint Madan Lal died on 21.2.1973. Madan Lal had executed a will on 30.1.1972. As per will, he gave 1/2 share of his property to the plaintiff and other 1/2 share to defendant No. 1 Chander Parkash. This way the plaintiff lay claim to the extent of 1/4th share in respect of the property kept jointly by Madan Lal and Chander Parkash as per decree dated 23.10.1972. The plaintiff further alleged that Chander Parkash-now represented by the appellants-illegally mortgaged four shops detailed in para 6 of the plaint with possession with various persons without any authority. Since plaintiff was owner to the extent of 1/4th share in the said property including the shops illegally mortgaged by defendant No. 1, the same does not bind the plaintiff and he is entitled to claim his 1/4th share by way of partition free from all encumbrances without payment of any charge/mortgage amount. Accordingly, the plaintiff prayed for a decree for possession by way of partition of the property shown in red colour in the site plan attached to the plaint.

The defendants filed joint written statement and controverted the various allegations contained in the plaint. It was contended by the defendants that the suit property was partitioned in two shares only and so the plaintiff was given 1/2 share which was shown in green colour and other 1/2 share shown in red colour fell to the share of defendant No. 1 Chander Parkash. It was further alleged that since Madan Lal was residing with defendant No. 1 so he was shown jointly with defendant No. 1 Chander Parkash-i. e. to say the property was partitioned into two portions one falling to the share of the plaintiff and the other to defendant No. 1. The exection of will by Madan Lal was denied. It was further contended that Madan Lal had no share in the property as per decree dated 23.10.1972. However, the defendants admitted that defendant No. 1 mortgaged various shops as detailed in para No. 6 of the plaint but all the same denied that the said mortgage was without any right or illegal. The defendants further defended the transfer effected in favour of defendant Nos. 2 and 3.

On the pleadings of the parties, following issues were framed:-

1/ Whether Sh. Madan Lal bequeathed his 1/4th share in the suit property on 30.1.1972 in favour of the plaintiff ? OPP.

2/ Whether the mortgages of the shop in dispute by Chander Parkash are valid and are binding on the plaintiff ? OPD.

3/ Whether the plaintiff is not entitled to sue for partition and claim 1/4th share in the property shown in red colour in the plaint ? OPD.

4/ Whether Chander Parkash was competent to transfer the share of Madan Lal to defendant No. 2 & 3 ? OPD.

5/ Whether defendant No. 1 was joint with Madan Lal and if so to what effect ? OPD.

6/ Whether property shown yellow in the plan attached to the plaint was kept join ? OPD.

7/ Relief.

The court decided issue No. 1 in favour of the plaintiffs holding that Madan Lal executed a valid will on 30.1.1972. Issue No. 2 was decided against the defendants and it was held that the mortgages executed by Chander Parkash were not binding on the rights of the plaintiffs because they also had a share in the shops. Issue No. 3 was also decided in favour of the plaintiffs holding that they have a right to claim 1/4th share in the suit property shown in red colour. Similarly, issue No. 4 and 5 were also decided against the defendants. Issue No. 6 was not pressed by the defendants and so was decided against them. Resultantly, the suit of the plaintiffs was decreed as prayed for.

The findings of the trial court were challenged by way of appeal. The appellant urged that the will dated 30.1.1972 on the basis of which the plaintiffs have laid claim could not relate to the property divided between the parties vide decree dated 23.10.1972 as in view of the aforesaid decree the share of the plaintiff-Parshtom Dass had been separated and remaining fell exclusively to the share of Chander Parkash defendant No. 1. The lower appellate Court found no merit in this contention of the appellants. Reference to the plaint in the earlier suit, admission statement, statements of the parties and the decree passed by the Court, makes it amply clear that whereas plaintiffs share was separated, Madan Lal and Chander Parkash kept their holding joint. Since the will has been duly proved wherein Madan Lal specifically stipulated that his property shall be shared equally between his sons namely, Parshotam Dass and Chander Parkash, the appellate Court found no merit in the plea of the appellants and so affirmed the finding of the trial Court in this regard. The Court also found no merit in the contention of the appellants that, in fact, the earlier compromise arrived at between the parties and reflected too in the decree dated 23.10.1972 was between Chander Parkash and Parshotam Dass alone and that Madan Lal had no share in the property subject matter of adjudication in the decree dated 23.10.1972. Consequently, the appeal was also found to be without any merit and so was dismissed.

The first submission of the learned counsel for the appellants is that both the Courts have erred in law in misconstruing the judgment and decree dated 23.10.1972. According to the counsel, the joint property of the plaintiffs and defendants was partitioned whereby the plaintiff-Parshotam Dass was given his 1/2 share and the remaining 1/2 share came to be owned and possessed by Chander Parkash defendant No. 1. This is clear from the map attached with the plaint showing in green colour the area which fell to the share of Parshotam Dass while the area shown in red colour fell to the share of Chander Parkash-defendant No. 1 whereas the area shown in yellow colour was kept joint. Mentioning of the name of Madan Lal as one of the party was on account of the fact that Madan Lal had been residing with Chander Parkash and so inadvertently while separating the share of Parshotam Dass the remaining was shown to be owned by Chander Parkash and Madan Lal.

This contention of the appellants is devoid of any merit. Admittedly, the suit bearing No. 294 instituted on 6.6.1972 was filed by Madan Lal and Chander Parkash as plaintiffs against Parshotam Dass-defendant-as is clear from the copy of plaint Exhibit PW 1/A which claim was admitted by Parshotam Dass defendant vide admission written statement Exhibit RW 6/B and pursuance to which statements of the defendant and the counsel for the plaintiffs were recorded and accordingly the plaintiffs were granted the declaratory decree sought for.

The next submission of the learned counsel for the appellants is that the will dated 30.1.1972 became inoperative in view of the changed circumstances i.e. subsequent to the execution of the will parties mutually, decided to part company and separate their share in the joint holding as is clear from the judgment and decree dated 23.10.1972. Since Parshotam Dass was given his share vide decree dated 23.10.1972 in the joint property, reference to the property/properties which was owned by Madan Lal as per will ought to be construed as reference to other property/properties of Madan Lal then the one subject matter of dispute in Civil Suit No. 294 of 1972. This contention too is without any merit. Both the Courts after carefully examining the evidence led by the parties have come to the conclusion that the will dated 30.10.1972 was duly executed by Madan Lal wherein he wished that the property in existence and property which may come to his share on death would be shared equally by his sons, namely, Chander Parkash and Parshotam Dass. Similarly, on bare perusal of the copy of the plaint in civil suit No. 294 of 1972, admission statement filed by the defendant and decree dated 23.10.1972 there is no manner of doubt that the joint property was divided between the parties whereby Parshotam Dass share was separate leaving behind the remaining as jointly owned and possessed by Madan Lal and Chander Parkash and so in view of the will the property left by Madan Lal was rightly held by the Court to be share equally between Chander Parkash and Parshotam Dass.

The next submission of the learned counsel for the appellants is that since Parshotam Dass had separated, he ceased to be a coparcener and so the remaining coparcenary property would devolve upon the surviving coparcener excluding the separated coparcener as per Section 6 of the Hindu Succession Act. This way too the Courts below erred in law in decreeing the suit of the plaintiffs on the basis of will dated 30.1.1972. No doubt, Section 6 Explanation (2) excludes a person who is separated from the co-oparcenary with regard to the share left by the deceased coparcener. But in the present case the controversy revolve round determining the powers of the coparcener to dispose of his interest in the coparcenary property by will or any other testamentary disposition. According to the learned counsel for the appellants, since the separated coparcener has been debarred from claiming any share in the property left by the deceased coparcener as per explanation (2) to Section 6, such a person also cannot lay claim on the basis of even a testamentary disposition-Will.

Section 30 of the Hindu Succession Act deals with testamentary succession. As per this section, a Hindu is entitled to dispose of by will or other testamentary disposition any property which is capable of being disposed of by him in accordance with the provisions o Indian Succession Act or any other law for the time being in force and applicable to Hindu. Explanation (2) to Section 30 further clarify that interest of a male Hindu in a Mitakshara coparcenary property shall, not withstanding anything in this Act or any other law for the time being in force, be deemed to be the property capable of being disposed of by him or her within the meaning of this section i.e. Today a Male Hindu having an interest in the coparcenary property can will away such a property by a testamentary disposition. Viewed in the light of Section 30, there is no escape from the conclusion that Madan Lal could Will away his coparcenary interest as he did as per will dated 30.1.1972, and in view of the testamentary disposition the property would go to the persons whose names have been mentioned as beneficiaries. The learned counsel''s submission that since separated coparcener has been debarred as per Section 6 to lay claim of the coparcener, such a person would lose claim even under a will duly proved, would be a clog on the rights of the person to will away his property to whom he wished to be. In fact, explanation to Section 30 of the Hindu Succession Act makes it amply clear by mentioning ''notwithstanding anything contained in this Act or any other law for the time being in force'' that interest of a male Hindu in a Mitakshara coparcenary property shall be capable of being disposed of within the'' meaning of this section.

The last submission of the learned counsel for the appellants is that Madan Lal died on 21.2.1973 and the present suit was filed by the plaintiffs on 25.10.1982 i.e. almost after a gap of about 9-1/2 years. This itself would suggest that the plaintiffs were aware of the factual aspects i.e. division between the plaintiffs and defendant and so did not lay any claim during all these years. This contention has hardly any merit. Admittedly, the suit has been filed within the period of limitation. Mere silence by the plaintiffs, perhaps on account of near relationship or that the matter could be amicably settled without the intervention of the Court, cannot be construed as an estoppal or waiver as now sought to be contended by the defendants.

No other point is pressed.

The appeal is thus without any merit and the same is accordingly dismissed. No order as to costs.

The appellants also filed an application under Order 41 Rule 27 read with Section 151 of the CPC seeking permission to place on record copy of the plaint, written statement and judgment and decree in civil suit No. 293 filed by Brij Mohan and others in 1971 and decided on 28.2.1972. No reasons have been assigned as envisaged under Order 41 Rule 27 of the CPC for adducing the same as additional evidence. Even on consideration of the whole matter in dispute, the same has hardly any bearing and perhaps this application has been filed to prolong the litigation thereby debarring the plaintiffs from getting their legitimate relief granted by the Courts below. This application is without any merit and consequently the same is dismissed.