Case: J. S. Bajaj &amp; Ors Vs. Arjandas Dayaram Vachhani &amp; Ors

1. This appeal by special leave is directed against the decision of a Division Bench of the Bombay High Court (reported in AIR 1966 Bom 133 ) allowing a petition under Articles 226 and 227 of the Constitution by Arjandas Dayaram Vachhani challenging the order of the Deputy Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) underthe Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954), hereafter referred to as the Act, disallowing the writ petitioners revision from the order of the Settlement Officer (with delegated powers of Settlement Commissioner) which had affirmed on appeal the order of the Assistant Settlement Officer. The writ petitioners case was held to fall within R. 19(3) of the Displaced Persons (C and R) rules, hereafter called the Rules, made by the Central Government under Section 40 of the Act.The facts are not in dispute. Kishan Chand Dayaram Vachhani and his four sons, Arjandas Dayaram Vachhani, Dayaram A. Vachhani, Ramchand Dayaram Vachhani and Kanayalal Dayaram Vachhani constituted a joint Hindu family when, as a result of partition of the country in 1947, they migrated from Sind (now in Pakistan) to India. After their migration Kishanchand Dayaram Vachhani, the father, made an application for verification of claim in respect of the properties left by the joint Hindu family in Sind. This claim was duly verified. It is unnecessary to make a detailed reference to the history of the case. Suffice it to say that on October 28, 1961 Shri Purshottam Sarup, Deputy Chief Settlement Commissioner (with delegated powers of Chief Settlement Commissioner) (Rehabilitation Department) allowed the appeal preferred by Arjandas Dayaram Vachhani from the order of Shri H. K. Chaudhary, Regional Settlement Commissioner, Bombay, dated May 14, 1961 and after setting aside the impugned order, directed that the property in question be treated as joint family property in which the parties would be entitled to apportionment as members of joint Hindu family in accordance with the Rules. Pursuant to this direction Shri K. S. Bedi, Assistant Settlement Officer, Bombay on June 12, 1963 directed that the case be re-processed. Shri Arjandas Dayaram Vachhani appealed from this order to the Settlement Officer (with delegated powers of the Regional Settlement Commissioner) but without success. That officer recorded a fairly exhaustive order dated October 21, 1963 in which the entire history of the case was noticed. A revision was taken to the Deputy Chief Settlement Commissioner, Shri Purshottam Sarup (with delegated powers of Chief Settlement Commissioner). That officer also went into the controversy at some length and by his order dated February 13, 1964 disallowed Shri. Arjandas Dayaram Vachhanis claim both under Rule 20 and Rule 19 (2) of the Rules. It was pointed out that in his (Shri Purshottam Sarups) earlier order it has been clearly stated that the parties constituted a joint Hindu family and were entitled to apportionment. The father and the sons could not be treated as separate and that their claim as tenants in common or as co-sharers was contrary to his earlier decision which had remained unchallenged. In view of sub-rule (3) of Rule 19, rule 19 (2) was held inapplicable.3. On an application under Articles 226 and 227 of the Constitution the High Court disagreed with the view of the Chief Settlement Commissioner and held Rule 19 (3) to be inapplicable when the joint Hindu family consists only of father and his sons. On this view the order of the departmental authorities was set aside.

Reasoning:
The error into which the High Court seems to have fallen is that it has assumed that a person against whom partition can be claimed by the father of the lineal descendants constituting the joint Hindu family must be some member of that family other than his lineal descendants and that it excludes his right to claim partition when the only other members of the joint family are his own lineal descendants.For this assumption there does not seem to us to be any justification either in the language or in the scheme of the Act and the rules or in any other provision of law applicable to the parties before us and governing the present controversy.5. According to the general provisions of Hindu Law the father in a joint Hindu family has the power to partition the joint family property and indeed in the present case the High Court has accepted the legal position that the father and each of his sons are entitled to claim partition against each other. It is only on the language of Rule 19 (3) and as the judgment under appeal suggests, on that Courts disinclination to accept as proper, the exclusion of the sons when the joint family consists only of the father and his sons that the High Court construed Rule 19 (3) in the manner stated above. We are unable to find any warrant for this view. The plain reading of Rule 19 (3) is against it.The language is not susceptible of the meaning that there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition. The words of the sub-rule being plain and unambiguous they have, in our view, to be construed in the natural and ordinary sense.No cogent reason has been suggested for departing from the rule of literal construction in this case. The consequence flowing from this construction is quite intelligible and seems to us to be rational and logical.The special provision embodied in Rule 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan. Such a joint family is not intended to be broken up by the statutory scheme of the Act and the Rules.Sub-rule (3)(b) of Rule 19 was, in our opinion, correctly construed by the Chief Settlement Commissioner and the High Court was wrong in disagreeing with it and in allowing the writ petition.