Ram Prakash vs Shyamlal and Others

Arun Bhansali, J.�This appeal under Section 96 C.P.C. is directed against the judgment and decree dated 23.09.2002 passed by Additional District Judge No. 3, Jodhpur, whereby, the suit filed by the appellant-plaintiffs seeking partition has been rejected.

The facts in brief may be noticed thus: the plaintiffs father and son respectively filed a suit on 16.07.1999 against defendant No. 1 brother of plaintiff No. 1, his wife and son and impleaded his own daughters as defendant Nos. 4 and 5 and purchasers of part of the suit property as defendant Nos. 6 and 7, with the averments that father of the plaintiff No. 1 and defendant No. 1-Shivlal purchased properties situated at ''Sardarpura'' and outside ''Sojati Gate'' from the money received from Kishanlal (his father). Ram Prakash (plaintiff No. 1), Om Prakash, Nenulal and Shyamlal (defendant No. 1), sons were borne to Shivlal among which, Om Prakash and Nenulal died issueless. The properties purchased by Shivlal from money received from Kishanlal (his father) were ancestral and Joint Hindu Family properties, it was not possible for the parties to live jointly, the plaintiffs came to know that the property situated at ''Sardarpura'' has been transferred on 06.07.1999, the plaintiffs'' share in the property situated at ''Sardarpura'' and ''Sojati Gate'' be determined, decree for their share be passed and part of the consideration regarding the properties sold may also be decreed.

A written statement was filed by the defendant Nos. 1 to 3, inter alia, indicating that the plaintiffs have not clarified their status regarding the suit properties as to whether they are joint owners, co-owners or co-parceners and have not indicated the share, which they are seeking in the suit properties; eldest child of Shivlal, Smt. Ratan Kanwar is alive, however, she has not been indicated in the family-tree; Shivlal had only three children from which Nenulal''s name was later on changed to Shyamlal, Nenulal had not died instead his name was changed; the plaintiffs have no right, title, interest, possession or share in the suit properties; the properties are neither ancestral nor Joint Hindu Family properties; Shivlal had purchased the ''Sardarpura'' property from his personal income on 01.02.1935 from Buda and as per the prevalent law in Jodhpur State ''Patta'' was got issued and out of love and affection names of Ram Prakash, Nenulal and Om Prakash were got included, whereas all the three sons were minor and had not contributed anything; Om Prakash died unmarried and issueless; Shivlal, who was sole owner of the properties, executed Will dated 09.07.1958 in favour of his wife Smt. Anop Kanwar; on 02.05.1925 Shivlal purchased property situated at outside ''Sojati Gate'' by registered sale-deed from Shekh Mohd. Baksh Abdul Latif, whose ''Patta'' was made in the name of Shivlal and the said property was also bequeathed in favour of Smt. Anop Kanwar by Will dated 09.07.1958; Shivlal died on 26.02.1965, whereafter Smt. Anop Kanwar instituted proceedings before the District Court, Jodhpur for obtaining probate of the Will, wherein notice was received by plaintiff No. 1, however, he did not file any objection; in the will Shivlal had clarified that the name of the sons were included in the ''Patta'' out of love and affection and the properties were his self-acquired properties; after obtaining probate, Smt. Anop Kanwar vide registered gift deed dated 27.06.1969 gifted the ''Sardarpura'' property to defendant No. 1 and 2, which was accepted by them and ever since they are in possession as owners; the document is more than 30 years old; the ''Sojati Gate'' property was also gifted by registered gift deed dated 19.04.1973 to defendant No. 1, which was accepted by him and ever since he is in possession of the suit property as owner and the plaintiffs have no right, title or interest in the said property; the defendants have right to transfer the ''Sardarpura'' property and part whereof was transferred earlier and the rest of the property was transferred after the stay was vacated; it was claimed that the plaintiffs have not paid house-tax of the said properties instead defendants are looking after the properties and paying the taxes and have let out the properties and recovered the rent; the electricity and water connections are in the name of defendant No. 1 and based on gift deeds dated 27.06.1969 and 19.04.1973 defendant Nos. 1 and 2 and defendant No. 1 respectively are in possession as owners; the suit is time barred; ad valorem court-fees has not been paid and cause of action has not been indicated, therefore, the suit was liable to be rejected; daughter of Shivlal, Smt. Ratan Kanwar is a necessary party. Ultimately, it was prayed that the suit be rejected.

The trial court framed as many as 22 issues. On behalf of the plaintiffs, 4 witnesses were examined and 24 documents were exhibited. On behalf of defendants, 2 witnesses were examined and 21 documents were exhibited.

After hearing the parties, the learned trial court came to the conclusion that the family-tree indicated by the plaintiffs was incomplete as name of Smt. Ratan Kanwar, sister was not indicated; Nenulal and Shyamlal were one and the same person; Smt. Ratan Kanwar was a necessary party to the suit; suit properties were not ancestral/Joint Hindu Family properties; the plaintiffs had no right in the suit properties as the same was purchased by Shivlal from his personal income and names of children in the ''Sardarpura'' Property were included out of love and affection; the suit properties were bequeathed by Shivlal in favour of his wife Smt. Anop Kanwar by Will dated 09.07.1958, the probate of the same was granted by District Court, Jodhpur and the suit properties were gifted by Smt. Anop Kanwar to defendant Nos. 1 and 2 by gift deed dated 27.06.1969 and to defendant No. 1 by gift deed dated 19.04.1973; the court-fees paid was appropriate; the plaint could not be rejected under Order VII, Rule 11 CPC; the suit was ex facie barred by limitation having been filed after a passage of more than 12 years from the date the gift deeds was executed; as the properties were self-acquired properties of Shivlal, without seeking cancellation of the Will and gift deeds, the suit was not maintainable; the suit could not be rejected for the lack of claim of specific share; the defendants were not entitled for special costs and dismissed the suit filed by the plaintiffs.

It was submitted by learned counsel for the appellants that from the record, it is apparent that the suit properties were purchased in the name of Shivlal from the funds provided by his father Kishanlal and, therefore, the suit properties were ancestral/Joint Hindu Family properties and the trial court fell in error in coming to a otherwise conclusion; from the record and the evidence led by the parties, it is apparent that it was Kishanlal, father of Shivlal and grand-father of plaintiff No. 1 and defendant No. 1, who was engaged in the business and Shivlal was not doing anything and, therefore, the properties were merely purchased in the name of Shivlal and was not his personal properties; it was also emphasized that in view of the document (Ex. - 5), which is a suit filed by Shivlal, he has admitted existence of Joint Hindu family, which conclusively establishes that the suit property was purchased out of joint family fund by Kishanlal in the name of Shivlal and, therefore, the execution of Will by Shivlal bequeathing the suit properties in favour of his wife Smt. Anop Kanwar, mother of plaintiff No. 1 and defendant No. 1 and her subsequent gift to defendant Nos. 1 and 2 are of no consequence.

Further submissions were made with reference to receipt of notice from the Assistant Controller of Estate Duty by plaintiff No. 1 (Ex. - 9) to contend that the plaintiff No. 1 was treated as accountable person and letters (Ex. - 20 & 21) said to have been written at the instance of the mother to indicate that she was not treated properly by the defendants.

It was also submitted that merely because the suit properties were in charge of the defendant No. 1 cannot and does not mean that they lose their character as joint properties and till such time that a partition takes place, the plaintiffs hold the properties in joint status and, therefore, the properties were liable to be partitioned. The findings of the trial court on issue of limitation was also questioned on the ground that it is only when the transfer took place in the year 1999 that the plaintiffs became aware of the intentions of the defendant No. 1 in appropriating the suit properties and, therefore, the suit was within limitation. Ultimately, it was prayed that the judgment and decree passed by the trial court deserves to be set aside and suit deserves to be decreed.

Per contra, learned counsel for the respondents submitted that the judgment passed by the trial court is a well reasoned judgment and the same does not call for any interference in the first appeal; the appellants have failed to point out any perversity in the findings recorded by the trial court and as such the appeal deserves to be rejected; the basis of the suit, that the suit properties are ancestral/Joint Hindu Family properties is non-existence inasmuch as, it is proved on record that the suit properties were self-acquired properties of Shivlal and he was well within his right to bequeath the same in favour of his wife Smt. Anop Kanwar by Will dated 09.07.1958 and as the said Smt. Anop Kanwar gifted the suit properties to defendant Nos. 1 and 2 way back in the year 1969 and 1973 respectively, the suit was not maintainable and in any case the same was barred by limitation. The notice of probate proceedings regarding Will dated 09.07.1958 was issued to the plaintiff No. 1 and no objection whatsoever was raised by him, if plaintiff No. 1 had any right in the suit property, on becoming aware that the same was being treated by Shivlal as his self-acquired properties, he should taken action at that stage and the suit is ex facie barred by limitation. It was further submitted that the suit in absence of Smt. Ratan Kanwar, sister of plaintiff No. 1 and defendant No. 1 was not maintainable; the inclusion of names of the plaintiff No. 1 and defendant No. 1 in the ''Patta'' pertaining to the ''Sardarpura'' property was merely out of love and affection and had nothing to do with any right in the suit property.

Reliance was placed on Biswanath Panda and Others Vs. Dr. Lokanath Panda, ; Raja Ram Singh Vs. Arjun Singh and Another, ; Jetharam and Others Vs. Hazarimal, .

I have considered the rival submissions made by learned counsel for the parties and perused the judgment passed by the trial court alongwith the record of the case.

The points for determination, which arise in this case are as to whether the suit properties can be termed as ancestral/Joint Hindu Family properties in the hands of Shivlal; whether Smt. Ratan Kanwar, sister of plaintiff No. 1 and defendant No. 1 is a necessary party and whether the suit is barred by limitation.

The fundamental issue which arises for consideration is regarding the nature of the suit properties. The plaintiffs came out with the case that the suit properties were purchased in the name of Shivlal from the consideration provided by his father Kishanlal, who alone was engaged in business activities and Shivlal himself was not doing anything and, therefore, the suit properties were ancestral.

A claim was made by the plaintiffs that Kishanlal died in October, 1948, whereas the claim of defendant No. 1 was that when Shivlal was aged about 2-3 years Kishanlal (his father) died and he was himself engaged in the business of preparation of food articles at Station and had acquired the suit properties from his own income. The plaintiffs'' claim was sought to be supported by his own oral statement and that of PW-2 Ramesh Kumar, who claimed that Shivlal told him that Kishanlal purchased the suit properties.

A bare look at the documents reveals that the property situated at ''Sardarpura'' was purchased in the name of Shivlal from Buda vide Ex. - A/2 and a ''Patta'' (Ex. - A/1) was issued by the Jodhpur State in favour of Shivlal, Ram Prakash, Nenulal and Om Prakash. Plaintiffs themselves have exhibited proceedings (Ex. - 15) pertaining to issue of ''Patta'', wherein it is specifically indicated while describing Shivlal in the report that he was having a Shop of ''Patta'' at Station, which report dated 02.05.1925 clearly contradicts the contention of the plaintiffs that Shivlal was not doing anything and it was Kishanlal, who was having a Shop of sweets etc. Further, Shivlal in his Will (Ex. - A/16) clearly indicated that when he was aged about 3 years his parents had expired and he had no ancestral property and the properties being bequeathed by him were his self-acquired properties. Further, the property situated at ''Sojati Gate'' was purchased vide Ex. - A/3 by Shivlal from Shekh Mohd. Baksh Abdul Latif vide sale-deed dated 02.05.1925 and ''Patta'' (Ex. - 1) stands in the name of Shivlal alone.

From the evidence available on record, plaintiffs have failed to prove that the suit properties were purchased by Shivlal in the year 1925 and 1935 from the income of Kishanlal (grandfather) and Shivlal had no personal income as he was not doing anything as the plaintiffs have failed to place any material on record to prove that Kishanlal was alive at the time of purchase of the suit properties and/or he had left any properties, which were succeeded by Shivlal, so as to form a nucleus for the purchase of the suit properties. The statement in the Will by Shivlal that his parents had died when he was aged about 3 years only cannot be brushed aside lightly in absence of any evidence to the contrary and, consequently, the finding recorded by the trial court as to the fact that Kishanlal had died when Shivlal was an infant; the claim of the plaintiffs that Shivlal was not undertaking any business activity was incorrect cannot be said to be perverse, so as to require interference by this Court.

So far as the inclusion of names of plaintiff No. 1 Ram Prakash, Nenulal and Om Prakash, sons of Shivlal in ''Patta'' (Ex. - A/1) is concerned, admittedly all the 3 children were minor at the time when the ''Patta'' was issued as the plaintiff No. 1 was aged about seven years and other two sons be younger to him. The names apparently were got included in the ''Patta'' (Ex. - A/1) despite purchasing the property in individual name by Shivlal vide Ex. - A/2 appears to be merely on account of love and affection as claimed by the defendant Nos. 1 to 3 and as indicated by Shivlal in his Will dated 09.07.1958 (Ex. - A/16).

A Division Bench of this Court in the case of Jetharam (supra) held that the mere fact that the father thought it proper to add his minor son''s name in the ''Patta'' does not prove that the property was acquired jointly by the father and his son. Nor is the fact that as the sons and grandsons lived with the father in the same house is sufficient for any presumption or finding that the father had voluntarily thrown the property in the common stock with the intention of abandoning all separate claims upon it. In view of the law laid down by this Court, the fact of inclusion of plaintiff No. 1''s name is of no consequence and does not advance his cause.

The conduct of the plaintiff No. 1 also is a clear indicator regarding the nature of the suit properties, deceased Shivlal executed Will dated 09.07.1958 (Ex. - A/16) bequeathing the entire suit properties in favour of his wife Smt. Anop Kanwar; Smt. Anop Kanwar on death of Shivlal, instituted proceedings for obtaining probate of the Will dated 09.07.1958 regarding which notice was issued to the plaintiff No. 1; the plaintiff No. 1 despite being aware of the claim made by Shivlal in his Will that the suit properties were his self-acquired properties, did not take any action for asserting his right qua the suit properties terming the same as ancestral/Joint Hindu Family properties.

Though, it is true that probate proceedings by themselves does not determine the character of the suit properties but then the conduct of the plaintiff No. 1 in not questioning the Will and/or taking action subsequent thereto for the purpose of asserting his right is a clear indicator so far as the plaintiff No. 1 was concerned regarding the nature of the suit properties i.e., the same were self-acquired properties of deceased Shivlal.

Though, reliance has been placed on the notice received by the plaintiff No. 1 from the Assistant Controller of Estate Duty (Ex. - A/9) to indicate that the plaintiff No. 1 was indicated as accountable person, however, it is interesting to note that in Ex. - A/9, the issue has been titled as ''Estate Duty case of Late Shri Shivlal Khandelwal'' and it clearly indicates inquiries in regard to ''the estate left by plaintiff No. 1''s deceased father''. If the claim of the plaintiff was that the properties were joint family properties, he would have raised objection before the Assistant Controller of Estate Duty, however, there is nothing on record to indicate that any objection was raised by plaintiff No. 1 in this regard.

Further the order relating to grant of probate (Ex. - A/5) passed by the District Judge, Jodhpur clearly notice that the Assistant Controller of Estate Duty, Rajasthan has given a certificate under Section 60 of the Estate Duty Act that no Estate Duty is due in respect of the properties forming part of the Will, clearly indicates that the Estate Duty proceedings also pertained to all the properties treating the same as personal properties of deceased Shivlal and no objection in this regard was raised by the plaintiff No. 1.

Strong reliance has been placed by learned counsel for the appellant on the suit (Ex. - 5) filed by Shivlal against plaintiff No. 1 and defendant No. 1, wherein, it is indicated in para-1 that plaintiff was father of the defendants and was ''Karta'' of his joint hindu family. However, it would be noticed that in the second para itself, it is indicated that plaintiff has not received any property from his ancestors and whatever property he owns has been acquired by him and are not ancestral and a declaration was sought by him that the defendants have no right, title or interest with the amount, which the plaintiffs were entitled to receive from the Competent Officer under the Administration of Evacuee Property Act, the suit was compromised vide Ex. - 6.

The reliance placed by the plaintiffs on Ex. - 5 is wholly misplaced as para-1 of the plaint cannot be read in isolation and the same has to be read alongwith para-2 as well, which demolishes the case of the plaintiffs about the suit properties being ancestral/Joint Hindu Family properties. The existence of a Joint Hindu Family and the fact as to whether any property belongs to such Joint Hindu Family are two different aspects. Mere existence of Joint Hindu Family per se cannot lead to the conclusion that the properties held by the ''Karta'' would ipso facto become joint properties, the conduct of the parties assumes importance and burden of proving that any particular property is Joint Hindu Family Property is in the first instance upon the person who claims it as co-parcener property.

In the present case as noticed hereinbefore, the plaintiffs have failed to prove the existence of nucleus for purchase of properties and the subsequent conduct in not questioning the Will, apparently not making any representation before the Assistant Controller of Estate Duty regarding the nature of the suit properties, which was claimed by Shivlal as his self-acquired properties, clearly indicates that mere one line in the document (Ex. - 5) that also indicating that Shivlal was ''Karta'' of the Joint Hindu Family and immediately thereafter indicating that all the properties held by him were his individual properties, cannot and does not advance the cause of the plaintiffs.

In view of the above discussions, the finding recorded by the trial court about the nature of the suit properties being self-acquired properties of the deceased Shivlal does not call for any interference and the same is, therefore, upheld.

So far as the submissions made by learned counsel for the appellants with reference to Ex. - 20 & 21 are concerned, which pertain to the year to the year 1983 and are certain Post Cards said to have been written at the instance of Smt. Anop Kanwar and in the submissions of the counsel for appellant indicates strained relationship between the mother and defendant No. 1, does not lead the appellants anywhere. The execution of the Will by Shivlal in favour of his wife Smt. Anop Kanwar stands proved in view of probate granted by the competent District Court, which is a judgment ''in rem'' and gift deeds (Ex. - A/6 & A/7) are registered documents and have been executed in the year 1969 and 1973 respectively cannot be questioned based on the letters (Ex. - 20 & 21) said to have been written after passage of almost 14 and 10 years respectively from the date of execution of the gift deeds.

So far as the issue as to whether the suit filed by the plaintiffs is within limitation, the fact that the suit properties were claimed by Shivlal as his self-acquired properties became known to the plaintiffs in the years 1965 itself when Smt. Anop Kanwar sought probate of the Will dated 09.07.1958 and notice in this regard was issued to the plaintiff No. 1. The deceased Shivlal had clearly indicated in his Will that the properties bequeathed were his self-acquired properties, the plaintiffs chose not to contest the proceedings and/or thereafter did not enforce his claim qua Smt. Anop Kanwar who succeeded to the properties on the strength of the Will and qua defendant Nos. 1 and 2, who were gifted suit properties by gift deeds executed in the year 1969 and 1973 respectively and it is indicated in the plaint that cause of action arose when the plaintiffs came to know about attempts to sale/sale of the suit property by defendant No. 1 in the year 1999, the fact that plaintiffs were sought to be excluded from the suit properties became known to them in the year 1965 itself and, therefore, the filing of the suit in the year 1999 was ex facie barred by limitation. The claim made by the plaintiffs that as the properties continued to be joint, the suit could have been filed in the year 1999 has apparently no basis as the plaintiffs have failed to point out any act indicating jointness qua the suit properties as it has come on record that plaintiff left Jodhpur for good when he got his service and the document (Ex. - 4), which is a summon pertaining to the suit filed by Shivlal (Ex. - 5), also indicates the address of the plaintiffs at Jaipur in the year 1959, and the plaintiffs have failed to indicate any overt act asserting title e.g., any receipt of the rent etc. of the suit properties and merely indicated the receipt of rent etc. by defendant No. 1 as arrangement without any particulars thereof.

Further the reliance placed on letters (Ex. - 10 to 12) written by Shyamlal, wherein certain social obligations have been discussed, does not advance the case of the plaintiffs and cannot affect the nature of the suit properties and, consequently, the suit filed by the plaintiffs is ex facie barred by limitation.

So far as the non-impleadment of Smt. Ratan Kanwar, sister of plaintiff No. 1 and defendant No. 1 is concerned, though in view of the findings regarding the nature of the suit properties and the limitation, the said issue loses its significance, however, in view of the law laid down in the case of Biswanath Panda (supra) and Raja Ram Singh (supra) by Orissa High Court and Delhi High Court respectively, the sister was also a necessary party, the suit in whose absence was liable to be dismissed under proviso to Order I, Rule 9 C.P.C.

No other point was argued by learned counsel for the parties.

In view of the above discussion, there is no substance in the present appeal and the same is, therefore, dismissed.

No costs.