* IN THE HIGH COURT OF DELHI + CS (OS) No. 1532/1996 Judgment reserved on ; 01.03.2006 % Date of decision : 08.03.2006 Dr. Prem Bhatnagar PETITIONERS through : Ms. Mala Goel with Mr. Asheesh Kumar Mishra, Advocates. -VERSUS- Shri Ravi Mohan Bhatnagar & Ors RESPONDENTS through : Mr. Radha Krishna Sharma, Advocate for defendant No. 1 Mr. K. Mukesh with Mr. Vikas Goyal, Advocates for defendants No. 2, 5 to 7. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL 1. Whetherthe Reportersoflocalpapers ^ may be allowed to see the judgment? 2. To be referredto Reporteror not? ^ 3. Whether the judgment should be reported in the Digest? HON'BLE MR. JUSTICE SANJAY KISHAN KAUL 1. The plaintiffhas filed a suit for partitionand renditionof accounts. Late L. Roop Narain was the perpetuallessee of plot measuring212.5 CS(OS)1532/1996 PageNo. I of28 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified •-V. C) b sq.yds. bearing Plot No.32 Block No.205-C, New Capital of Delhi in pursuance to a perpetual lease deed dated 28.7.1939 (Ex.PWl/1). The said property is now known as 37, Todar Mai Lane, Bengali Market, New Delhi-110001 (hereinafter referred to as 'the suit property'). Shri L. Roop Narain is stated to have passed away in 1957. 2. Late L. Roop Narain was survived by his son late Shri Amar Nath Bhatnagar who is stated to have inherited the various immovable properties of Late L. Roop Narain. Such properties are stated to have been situated in Panipat, Haryana apart from the properties in Delhi but the same are stated to have been sold, the details of which are not known to the plaintiff. The principalpropertysubjectmatter of the suitis the suit property. 3. The plaintiffis the son of late Shri Amar Nath Bhatnagarwho also passed away on 30.9.1995. Shri Amar Nath Bhatnagarmarried twice. The two wives are Smt. Kamla Devi and Smt. Chand Rani, both of whom pre-deceasedShri Amar Nath Bhatnagar. The plaintiffand defendant No.8 are the sons from the first wife, Smt. Kamla Devi, while defendants No. 1, 2, 5, 6 and 7 are the sons from the second wife, Smt. Chand Rani. Defendants No. 3 and 4 are the son and widow respectively of late Madan Mohan Bhatnagar, a pre-deceased son of Shri Amar Nath Bhatnagar from Smt. Chand Rani. The family tree is as under: CS(OS)1532/1996 PageNo. 2of28 f. Rup Narain Venna (died in 1957) Amar Nath Bhatnagar (dies on 30.9.1995) Kamla Devi First Wife (Predeceased Amar Nath Bhatnagar) © ChandRani Second Wife (Predeceased Amar Nath Bhatnagar) Smt. Roop Rani Bhatnagar Daughter (Def.5) l/6th + l/48th share Smt. Usha Rani Bhatnagar Daughter (Def.6) l/6th + l/48th share Madan Mohan Vijay Mohan Ravi Mohan Vijay Laxmi Dr. Prem Bhatnagar Son (Plaintiff) 1/6 share plus l/48th share CS (OS) 1532/1996 Bhatnagar Predeceased son Survived by Bhatnagar Bhatnagar Son Son (Def.2) (Def.l) l/6+l/48th l/6 + l/48th share share Mohit Bhatnagar Son (Def.3) l/12th + half of l/48th share Daya Narain Bhatnagar Son (Def.8) 1/6 share plus l/48th share Smt. Uma Bhatnagar Widow (Def.4) 1/12 +half of l/48th share Bhatnagar Daughter (Def.7) 1/6 + l/48th share Page No. 3 of28 --r (T^ Q 7-^. € 4. The plaintiff claims that since the movable and immovable properties were inherited by late Shri Amar Nath Bhatnagar from his father Late L. Roop Narain, all the sons and daughters, whether from the first wife or the second wife have a share in the property. The daughters are stated to have a lesser share by reason of the fact that they will get only a share out of the share falling to late Shri Amar Nath Bhatnagar. The sons are stated to be coparceners in the property having 1/6"" share each and would further get 1/48* share from the share falling to late Shri Amar Nath Bhatnagar. The daughters would get 1/48'^share. It may be noticed at this stage that during the course of the arguments, however, it has been stated that the daughters would have now equal share arising from the amendment to the Hindu Succession Act, 1956 (hereinafter referred to as 'the said Act') made w.e.f. 9.9.2005 giving equal rights to the females in the coparcenary property. 5. Late Shri Amar Nath Bhatnagar is stated not to have left behind any Will. The property is stated to be under the control and management of defendant No.l even though he is not the eldest son. The plaintiff is stated to have asked for partition but the defendants failed to oblige. 6. The suit is resisted by defendants No.l, 2, 5, 6 & 7. The principal defence taken is that the property in question is not ancestral in nature in view of the devolution by succession on late Shri Amar Nath Bhatnagar and the same was his self-acquired property. Shri Bhatnagar is stated to CS(OS)1532/1996 Page No. 4 of28 € f have executed the last Will and testament dated 7.2.1983 duly registered with the Sub-Registrar, Delhi on the same date. It is claimed that in terms of the said Will, the property in question including the plot, some shares and agricultural land at Panipat apart from household effects were bequeathed exclusively to defendant No.l who became the absolute owner of the property in question. Even the movable property not included in the Will was bequeathed to defendant No.l. Defendant No.l thus claims exclusive right to the estate of late Shri Amar Nath Bhatnagar. The plaintiff is stated to have separated from his parents in 1954 and did not even invite them for his marriage. Late Shri Amar Nath Bhatnagar is stated to have purchased a plot No. WZ-28, Mukh Ram Park Extn., Tilak Nagar, New Delhi in the name of the plaintiff out of love and affection and the existence of any HUP or coparcanery property has been denied. Defendants No.2,5,6 and 7 have supported the stand taken by defendant No.l. However defendant No.3 to 4 and defendant No.8 are siding with the plaintiff. The following issues were framed on 1.10.1999: "1. Whether the plaintiff is in possession of the property? 2. Whether the suit has been valued properly for the purposes of Court fee and the same has been paid thereon? 3. Whether the property in suit is HUF/ancestral, if so to what effect? CSiOS)1532/1996 PageNo. 5of28 0>"^- 4. Whether defendant No.l has become owner of the suit property by operation of Will executed by the father of defendant No.l? 5. To what share if any, is the plaintiff and other parties entitled to? 6. Whether Shri Amar Kant Bhatnagar had right to bequeath the suit property in favour of defendant No.l? 7. Whether the property in suit is liable to be partitioned and if so which parties is entitled to what share? 8. Relief." 7. The plaintiff examined Mr. Roop Singh, LDC from the office of the L&DO as PWl who proved the certified copy of the perpetual lease deed as Ex.PWl/1. On demise of late L. Roop Narain, the property was mutated in the name of late Shri Amar Nath Bhatnagar as per the mutation letter dated 1.7.1960 which was proved as Ex.PW 1/2. 8. The plaintiff appeared in the witness box as PW2 and affirmed to the facts set out in the plaint. The plaintiff claimed share in the ancestral property as set out in the plaint. The plaintiff denied that he was separated from his father and other family members and proved as EX.PW2/1, the invitation card for the marriage of his son which bore the name of his father. Other communications between the parties were also referred to show that there was cordial relationship between the parties and the father of the plaintiff attended family functions. In the cross- examination, the plaintiff admitted that he had been living at his residence at Tilak Nagar for the last 30 years. The plaintiff admitted that for the CS(OS)1532/1996 Page No. 6 of28 1 ^ the suit propertyin favour of his father. The plaintiffalso denied the knowledge of any will of his late father. The will (Ex.DWl/12) was shown to the plaintiff but he refused to identify the signatures of his father at point A on the said will and claimed he could not see properly. The plaintiff had admitted that he could recognize the signatures of his father otherwise. The plaintiff also refused to recognize the signatures of his sister Ms. Rup Chandra as a witness at point B since he claimed that he had never seen her sign. The plaintiff stated that his eyesight was short and he required a magnifying glass and thus the cross-examination was deferred. On the next day, when the plaintiff appeared as a witness, he denied that the signatures on the will were that of his father. The plaintiff also admitted in the cross-examination that he did not attend the marriage of his sister Roop Rani Bhatnagar as he was not invited by his father. He admitted that his father and other parental members did not attend his marriage. CS(OS)1532/1996 Page No. 7of28 f r last 40 years, he had not resided in the suit property nor had he received any income from the suit property. The plaintiff admitted that he had not paid any house tax bill, water or electricity charges. The plaintiff did not dispute that his father Shri Amar Nath Bhatnagar had three sisters and a mentally handicapped brother who had not been arrayed as parties. Only one of his aunts of 90 years of age was alive. The plaintiff denied that he had knowledge of his uncles and aunts having relinquished their share in a 9. Defendant No.l appeared in the witness box as DW-4 and stated that the suit property was inherited from his grand-father, by his father, his aunts and uncle. The brothers and sisters of late Shri Amar Nath Bhatnagar executed a Relinquishment Deed dated 24.5.1958 which was registered on 29.10.1958. A certified copy of the same was proved as Ex.DWl/1, as the original was stated to have been misplaced. Thus, late Shri Amar Nath Bhatnagarbecame exclusiveowner of the propertyonly in pursuance to the Relinquishment Deed. Defendant No.l also stated that his father late Shri Amar Nath Bhatnagar had executed a Will dated 7.2.1983 bequeathing all the properties to him which Will had been registered and the same had been proved as Ex.DWl/2. He identified the signatures of late Shri Bhatnagar at point A and also of his elder sister Smt. Rup Chandra at point B. Defendant No.l stated that the plaintiff was aware about the execution of the Will and none of the other defendants and the plaintiff had, prior to the dispute raised in the suit, claimed any share in the property. Defendant No.l had been residing with his family at the suit property. The plaintiff and his family members were stated not to have resided in the property since 1954. In the cross- examination, he admitted that the last rites of his father were performed by the plaintiff at the request of the family members and that the wife and son of his deceased brother Mr. Madan Mohan Bhatnagar continued to stay at the house and still resided there; his sister Rup Chandra resides in CS(OS)1532/1996 Page No. 8 of 28 r;s# America for the last ten years. The plaintiff is stated to have visited his father on some occasions. The shares in the companies were stated to have been transferred by his father in his name before his demise. There is little else which came out during the cross-examination. 10. Ms. Rup Chandra appeared in the witness box as DW1(5). She has ^ statedthat her father late Shri Amar Nath Bhatnagarwas the sole owner of all of his properties and during his lifetime had executed the will dated 7.2.1983. The will was signed in her presence and in the presence of Shri Ram Avtar Aggarwal. Both the attesting witnesses are stated to have signed in the presence of the testator. Defendant No.l is thus stated to be the absolute owner of the properties. The witness also stated that the plaintiff had separated from his father and the defendants as far back as in the year 1954. She identified her signatures on the Will. The witness denied the suggestion that her father was suffering from Parkinson's Q disease. She statedthat she had been livingin the USA since 1980. Mr. Ram Avtar Aggarwal was stated to be a common friend of the family and was residing in Hapur. 11. Defendant No.7 Mrs. Vijay Laxmi Bhatnagar appeared in the witness box as DW2. The said witness more or less took the same stand as defendant No.l. 12. It is not necessary to discuss the remaining testimony of defendants as it merely supports the stand of defendant No.l. CS(OS) 1532/1996 Page No. 9 of28 c Issue No.l: 13. The testimony both of the plaintiff and the defendants leaves no manner of doubt that the plaintiff is not in possession of the suit property and in fact had been out of suit property since the year 1954. The testimony also shows that the plaintiff had married outside the caste and had resided separately since 1954. The plaintiff had neither paid house tax nor electricity or water charges. In view of the clear admission of the plaintiff itself, the issue is answered against the plaintiff. Issue No.2: 14. The plaintiff has valued the suit for the relief of partition at Rs.80 lakhs. The defendant has also not led any evidence to show any contradictory valuation. The plaintiff has, however, paid a fixed court fees with an undertaking to pay requisite court fees after passing of the decree. This is based on a presumption as if the plaintiff was in the joint possession of the property. Admittedly, the plaintiff had been out of the property for more than 40 years during which time he had no concern with the property and thus was in effect seeking possession of the property. Thus, ad valorem court fee was liable to be paid on the plaint and thus the issue is answered against the plaintiff. Issue No.3: 15. The third issue dealing with the question whether the suit property is HUF or ancestral property is really the crucial question. It is not in CS(OS}1532/1996 Page No. 10of28 -A h At) dispute that originally the property was purchased as perpetual lessee by the grandfather of the plaintiff, Late L. Roop Narain, in pursuanceto the perpetual lease deed Ex.DWl/1. The property thereafter devolved by succession on the children of Late L. Roop Narain on his demise. Late L. Roop Narain was survived by the father of the plaintiff Shri Amar Nath Bhatnagar as also another brother and sisters. However, the property was mutated only in the name of Amar Nath Bhatnagar as per Ex.PWl/2 being the mutation letter dated 1.7.1960. The same has been done in view of the fact that the other heirs of Late L. Roop Narain relinquished their interest in favour of late Amar Nath Bhatnagar. The Relinquishment Deed dated 24.5.1958 registered on 29.10.1958 has been proved by defendant No.l (DW4) as Ex.DWl/1. This clearly shows that late Shri Amar Nath Bhatnagar had inherited only 1/6'^ share in the property and became the absolute owner of the property only on the Relinquishment Deed being executed by the other five legal heirs of Late L. Roop Narain. 16. The plea of learned counsel for the plaintiff was based on the premise that as the father of the plaintiff inherited the property from the grand-fatherof the plaintiff, the property was coparcenary property in the hands of his father and thus his father could not have willed away the property. At best, the Will could have been to the extentof his share. In this behalf, learned counsel has referred to Mulla on Hindu Law, CS(OS)1532/1996 No. 11 of28 .-J-- EighteenthEditionand has drawn the attentionof this court to page 366 wherepara 212 sub-para(2) deals witha 'jointfamily' whichis as under: "(2). the joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family." 17. The aforesaid paragraph has been relied upon to advance the submission that nature and character of a joint and undivided family is not lost by severance in food and worship and possession of joint family property is not a necessary requisite for constitution of a joint Hindu family. 18. Learned counsel also referred to p.367 dealing with a Hindu coparcenary. In para 213, it has been stated as under: "To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great- grandsons, they become joint owner's coparceners with him. they become entitled to it due to their birth. CS{OS)1532/1996 Page No. 12of28 "•-V r\ These propositions also must be read in the light of what has been stated in the note at the top of this chapter." 19. Learned counsel thus contended that the property inherited by a Hindu from his father is ancestraland since it is not in dispute that late Amar Nath Bhatnagar inherited the property from his father, the same partakes the character of an ancestral property. 20. Learned counsel also drew the attention of this court to p.577 para 307 where it is stated that "every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time". 21. Learned counsel further referred to p.592 para 321 dealing with the shares on partition that on a partition between the father and his son, each son takes a share equal to that of the father. Thus, if a joint family consists of a father and three sons, the property will be divided into four parts, each of the four members taking one/fourth. 22. Learned counsel referred to the judgment of the Supreme Court in Villiammai Achi v. Nagappa Chettiar & Anr., AIR 1967 SC 1153 to advance the submission that the father in Mitakshara family has a very limited right to make a Will and the mere fact that the property is willed and a probate is taken out would not alter the character of the property. In the said case, the son was given only the residue property from the joint Hindu family property and had taken out probate proceedings. It was held that even if it be assumed that the son had made an election CS(OS)1532/1996 Page No. 13 of28 o when he took out probate, there could be no question of his sons being bound by that election because the right which a son takes at his birth in ancestral property is wholly independent of his father. 23. Learned counsel for the plaintiff relied upon the judgment of the Supreme Court in State Bank of India v. Ghamandi Ram fdead) by his LR Gurbax Rai, AIR 1969 SC 1330 where it was observed in para 7 as under: "7 The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person: secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a Q co-parcener with his adoptive father as regards the ancestral properties of the latter." (Emphasis supplied) 24. The learned counsel for the plaintiff thus submitted that a person up to third generation acquires at birth ownership and thus the plaintiff is entitled to his share in the ancestral property. 25. Learned counsel for contesting defendants, on the other hand, contended that the principles sought to be made applicable by the plaintiff to ancestral property stand modified by the said Act. Thus, succession CS(OS)1532/1996 Page No. 14of28 amongst Hindus has to be as per the Hindu Succession Act, 1956. Section 4 of the said Act provides as under: "4. Over-riding effect of Act. - (1) Save as otherwise expressly provided in this Act, - (a) any text,rule or interpretationof Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is A made in this Act; ^ (b) any other law in force immediatelybefore the conomencementof this Act shall cease to apply to Hindus in ^ so far as it is inconsistent with any of the provisions contained in this Act. (2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings." 26. It was thus submitted that wherever a provision is made under the Act, the ancient Hindu Law would cease to operate. 27. Learned counsel for the defendants referred to two important judgments of the apex court in this behalf to contend that the property was not an ancestral property. Before discussing the judgments, as noticed above, an important fact is that the property was inherited not by the father of the plaintiff alone but he inherited the same along with his brothers and sisters. The brothers and sisters relinquished their share specifically in his favour as per the Relinquishment Deed and thus there CS(OS) 1532/1996 Page No. 15 of 28 y was no devolution of 5/6''" share of the estate on him but rather the same devolvedon the father of the plaintiffin pursuanceto the Relinquishment Deed. Only 1/6'^sharedevolvedfrom lateL. Roop Narain. 28. The firstjudgmentreferredto b^ learnedcounselfor the contesting defendants is Commissioner of Wealth-tax, Kanpur v. Chander Sen. AIR 1986 SC 1753. The effect of Section 8 of the said Act was discussed. Section 8 is as under; ""8. General rules of succession in the case of males. IP - The property of a male Hindu dying intestateshall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and , (d) lastly, if there is