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Abnashi Singh and ors. Vs. Smt. Lajwant Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 6 of 1964
Judge
Reported in(1976)78PLR828
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2; Limitation Act, 1908 - Schedule - Article 127; Limitation Act, 1963 - Schedule - Article 110
AppellantAbnashi Singh and ors.
RespondentSmt. Lajwant Kaur and anr.
Appellant Advocate Bhagirath Dass,; S.K. Hirajee and; B.K. Gupta, Advs.
Respondent Advocate K.S. Thapar and; Deepak Thapar, Advs.
DispositionAppeal allowed
Cases Referred and A. S. Krishnappa Chettiar v. Nachiappa Chettiar
Excerpt:
.....injunction against mst. at the same time, before the principle contained in this provision can be applied, three conditions must be satisfied. this is precisely what was done by the division bench of this court while deciding r. i would not like to non-suit the appellants on the basis of such a highly technical plea. a situation like this would be governed by article 127 of the old limitation act, which is equivalent to article 110 of the new limitation act......bench also observed as under:--'in view of all that i have said above since i have held that the joint hindu family had disrupted in 1944 and reunion has not been proved, the declaration sought for by the plaintiffs cannot be granted. they can if they are advised, file a suit for actual partition of the property or seek any other appropriate relief.'4. having failed to get an injunction against mst. lajwant kaur, to run the press in her own name. mst. rajwans kaur, wife of lakhbir singh deceased, tarlok singh and avnashi singh his two sons, filed a suit for partition of the entire property of the hindu undivided family and rendition of accounts against mst. lajwant kaur and iqbal singh. the learned trial judge who heard this suit framed the following issues on the basis of the.....
Judgment:

M.R. Sharma, J.

1. The appeal is directed against the judgment dated August 13, 1963, rendered by the learned Subordinate Judge 1st Class, Amritsar.

2. In order to understand the points in controversy, it becomes necessary to have a look at the following pedigree table:

LAKHIBIR SINGH alias LAKHA SINGH = Smt. Rajwans Kaur

_____________|___________________________ (widow of Lakha Singh

| | | Plaintiff No. 3

Tarlok Singh Abnashi Singh Bhupinder = Smt. Lajwant Kaur

Plaintiff No. 2 Plaintiff No. 1 Singh (deceased) Widow of

Iqbal Singh Bhupinder Singh

Defdt. No. 2 Defdt. No. 1

3. It is alleged that the business of printing press under the name and style of Wazir Hind Press, Hall Bazar, Amritsar, belonged to the Hindu undivided family of which Lakha Singh was the Karta. After his death, his eldest son Bhupinder Singh took over the business. He is stated to have died on September 28, 1952. Thereafter, his widow Smt. Lajwant Kaur took over this business and applied for a licence to run the press in her own name as the proprietress of the business. This application was allowed on January 19, 1953, by the Additional District Magistrate, Amritsar. Upon this, Rajwans Kaur widow of Lakha-Singh, Tarlok Singh and Avnashi Singh, brothers of Bhupinder Singh deceased, filed a suit for declaration that the business being the ownership of the Hindu undivided family, Smt. Lajwant Kaur should be restrained from running this business in her own name, Iqbal Singh, the minor son of Bhupinder Singh deceased, was also impleaded as party. This suit was decreed on March 31, 1953, by the learned trial Judge. Iqbal Singh minor and his mother Smt. Lajwant Kaur filed an appeal against this judgment which was registered as R. F. A. No. 139 of 1955 (Iqbal Singh v. Abnashi Singh). It was decided by a Division Bench of this Court consisting of S. S. Dulat and P. C. Pandit, JJ., on April 11, i960 (Punj). The Division Bench held that there was no actual partition Of the property in dispute in 1945 as alleged by the appellants before them. The Bench also observed as under:--

'In view of all that I have said above since I have held that the joint Hindu family had disrupted in 1944 and reunion has not been proved, the declaration sought for by the plaintiffs cannot be granted. They can if they are advised, file a suit for actual partition of the property or seek any other appropriate relief.'

4. Having failed to get an injunction against Mst. Lajwant Kaur, to run the press in her own name. Mst. Rajwans Kaur, wife of Lakhbir Singh deceased, Tarlok Singh and Avnashi Singh his two sons, filed a suit for partition of the entire property of the Hindu undivided family and rendition of accounts against Mst. Lajwant Kaur and Iqbal Singh. The learned trial Judge who heard this suit framed the following issues on the basis of the pleadings raised by the parties:--

(1) Whether the plaint is properly valued for purposes of Court-fee and jurisdiction ?

(2) Whether the suit is within time ?

(3) Whether the suit is barred by the principles of res judicata and Order 2, Rule 2, Code of Civil Procedure?

(4) Whether there has been disruption of joint Hindu family If so, on what date and with what effect ?

(5) Whether there was complete partition of the property belonging to the family. If so, when and to what effect ?

(6) Whether the plea of issue No. (5) is barred by res judicata ?

(7) Whether the defendants are in adverse and exclusive possession of Wazir Hind Press ?

(8) Whether the properties mentioned in the plaint are joint properties of the parties If not, which or any of them is joint between the parties ?

(9) What are the respective shares of the parties in the joint properties.?

(10) Whether the plaintiffs are entitled to any accounts from defendant No. 1 If so, since when ?

(11) Relief.

5. On issue No. (1), it was held that the court-fee had been properly paid. On issue No. (2), it was held that the suit was within time. On issue No. (3), it was held that the suit was barred by the principle of res judicata. On issue No. (4), it was held that the joint family had disrupted on December 18, 1944, and thereafter the family ceased to be joint Hindu family. On issue No. (5), it was held that there had been no partition of the joint property. On issue No. (6), it was held that the respondents could not urge on the basis of the principle of res judicata that the property in dispute had been partitioned earlier. Issue No. (7) was disposed of with the observation that though the respondents were in adverse possession of the property in dispute yet the suit had been filed within time. Regarding issue No. (8), it was held that the property in dispupte was joint property of the parties. Regarding issue No. (9), it was held that the appellants were entitled to have l/4th share of the property left by Lakhbir Singh and that each of the respondents was entitled to have l/8th share of this property. On issue No. (10), it was held that the appellants were entitled to ask for rendition of accounts from the respondents from the day when the property ceased to remain joint Hindu family property. Since the finding on the material issue regarding the applicability of Order 2, Rule 2, Code of Civil Procedure, had been against the appellants, their suit was dismissed. They have come up in appeal before me.

6. The learned counsel for the respondents also sought to uphold the validity of the judgment by submitting that the suit filed by the appellants was barred by time.

7. In the circumstances aforementioned, I am only called upon to decide whether the provisions of Order 2, Rule 2, Code of Civil Procedure, are attracted to the facts and circumstances of the instant case or not and whether the suit filed by the appellants was within time or not.

8. Order 2, Rule 2 of the Code of Civil Procedure, lays down that every suit shall include the whole of the claim which a plaintiff is entitled to make in respect of the cause of action and where a plaintiff omits to sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to Sue in respect of the portion so omitted or relinquished. The rule contained in this provision is designed to counteract two evils, namely, the splitting up of claims and the splitting up of remedies. At the same time, before the principle contained in this provision can be applied, three conditions must be satisfied. Firstly, the earlier suit and the second suit must arise from the same cause of action and, secondly the two suits must be between the same parties, and thirdly the earlier suit must have been decided on merits.

9. Now, the nature of the earlier suit filed by the appellants was quite different. Mst. Lajwant Kaur had merely applied to the District Magistrate that she be allowed to carry on the business of printing press in her own name under a licence. Anybody who is possessed of the facilities to enter into this business could perhaps apply for such a licence and the same could be granted as a matter of course. Even if Mst. Lajwant Knur continued with this business by utilising the assets of the Hindu undivided family, the other members of the family could not object that she should not be granted a printer's licence. They could only claim partition of the entire Hindu undivided family property. It is also settled law that partial partition is not permissible. No member of the joint family can come forth and assert that only that portion of the property, which was in the exclusive possession of another member of the family, should be subjected to partition and that he himself be allowed to keep the remaining parcel of the joint family property in his own possession. This is precisely what was done by the Division Bench of this Court while deciding R. F. A. No. 139 of 1955. It is no doubt true that in that suit the appellants had asserted that respondent No. 1 be debarred from carrying on the business in her own name because the property belonged to the joint Hindu family. But even if a part of the joint family property is in possession of a coparcener or a member of the family, it is open to him or her to make use of this property, till such time as the entire property of the family is partitioned. Even if the appellants had filed a suit for the partition of the properties at that time, that suit would have been dismissed on the short ground that the family had another house which also belonged to the Hindu undivided family and that partial partition of the family property was not competent. Such a suit would have been dismissed on the principle that the suit did not lie in that form. The dismissal of a suit on such a ground does not debar a plaintiff to bring in a fresh suit in proper form prescribed by law. It was only in the suit out of which the present appeal arises that the appellants claimed partition of the entire Hindu undivided family property. The cause of action for a suit to restrain a person from carrying on the business of printing press in his or her name and the cause of action for a suit for the partition of the entire Hindu undivided family property are quite different. I am accordingly of the view that the necessary conditions under which the principles of Order 2, Rule 2 of the Code of Civil Procedure, can be invoked are missing in the instant case.

10. Mr. K. S. Thapar, the learned counsel for the respondents, has brought to my notice Sidramappa v. Rajashetty, (1970) 3 SCR 319 = (AIR 1970 SC 1059), in which it was observed as under:--

'The requirement of Order 2, Rule 2, Code of Civil Procedure, is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.'

11. There is no quarrel with the aforementioned rule of law laid down by their Lordships of the Supreme Court. As already noticed, the suit earlier filed by the present appellants did not lie in that form. The dismissal of such a suit on the basis of a formal defect did not disentitle them to bring in another suit even on the same cause of action. In these circumstances, the principle contained in Order 2, Rule 2, Code of Civil Procedure, cannot be set up as a bar to the present suit. I may also observe that in R. F. A. No. 139 of 1955 a firm finding had been given that the properties formed a part of the Hindu undivided family property which had not been partitioned by metes and bounds. If not for anything else, at least for the sake of substantial justice. I would not like to non-suit the appellants on the basis of such a highly technical plea. In the cir-cumstances, I reverse the finding arrived at by the learned trial Court on this point and I hold that the bar of Order 2, Rule 2, Code of Civil Procedure, did not apply against the maintainability of the instant suit.

12. On the question of limitation, Mr. Thapar has submitted that the approach made by the learned trial Court was not correct inasmuch as it could not have excluded the time during which the earlier decree passed in favour of the appellants had been stayed by the injunction granted by this Court. The learned counsel argued that the appellants could not invoke the benefit of Section 15 of the Limitation Act in these circumstances. In support of this view, Mr. Thapar has relied upon Sirajul Had Khan v. The Suni Central Board of Waqf, U. P., 1959 SCR 1287 = (AIR 1959 SC 198) and A. S. Krishnappa Chettiar v. Nachiappa Chettiar, (1964) 2 SCR 241 = (AIR 1964 SC 227). It is, however, not necessary to pursue this line of reasoning any further because admittedly the Hindu undivided family also owned a house from which the appellants had not been ousted. In 1953 when Mst. Lajwant Kaur sought to run the business in her own name, she purported to exclude the appellants only from a part of the property of the family. A situation like this would be governed by Article 127 of the old Limitation Act, which is equivalent to Article 110 of the new Limitation Act. Limitation for filing a suit to enforce the right of partition against a portion of a Hindu undivided family property is 12 years from the date when the exclusion becomes known to the plaintiff. Under the circumstances, the suit could have been filed up to 1965. I, therefore, overrule the contention raised by Mr. Thapar that the suit should have been held to have been barred by time.

13. For the reasons mentioned above, I allow this appeal and remand the case to the learned trial Court for further proceedings in accordance with law.

14. Parties through their learned counsel are directed to appear before the said Court on September 20, 1976.


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