1. This judgment will dispose of two Civil Writ Petitioners Nos. 305D and 351D of 1960 filed by Sat Parkas and Bhupinder Parkash petitioners respectively. The facts relevant for their disposal may briefly be stated. Sat Parkash and Bhupinder Parkash are two brothers. They migrated from Lahore from Lahore on partition of the country in 1947. They filed separate claims for the property abandoned by them there and each claim was verified for the Displaced Persons (claims) Act, 1950. Subsequently the Settlement Commissioner under the Displaced Persons (Claims Supplementary) Act (No. XII of 1954) suo motu issued notices to Bhupinder Parkash petitioners to show cause as to why the value of property shown at item No. 3 of the dated 6th December 1951 should not be redetermined. The Settlement Commissioner after hearing the claimant by his order dated 27th May 1958 copy annexure A observed 'I have also gone through the file and find that there is no prima facie evidence representation amounting to fraud.' In the result he declined to interfere in the order already passed by Mr. Raj Kishan Gupta Claims Officer.
The two petitioners jointly purchased properties Nos. H/66/68-H /102-3/37/37/37/1 and H. 36. H/ 5-8 situate in New Delhi in a public auction on 29th December, 1955, for RS. 3,05,000/-... The bid provisional was finally accepted by the competent authority and provisional possession of the properties so purchased was delivered to them and since then they had been collecting rents from the tenants although the sale petitioners were entitled to compensation to the tune of Rs. 1,57,320/- each on the basis of their verified claims. The auction money of the properties purchased by them was to be deducted from the amount of compensation payable to them. The Settlement Officer of the office of the Regional Settlement Commissioner Delhi by his order dated 14th May, 1959, informed the petitioners that their claims had been Rs. 1,00,000/- each. He deducted Rs. 32,273.04 nP. out of this sum of Rs. 2,00,000/- and gave credit of the balance towards the sale price of the properties purchased by the petitioners in the auction and directed the officer who was to finally transfer the properties in favour of the petitioners that before doing so he should recover Rs. 1,37,273.04 nP. from them as balance of the sale price.
The petitioners felt aggrieved from this order and preferred two separate appeals which came up for hearing before the Deputy Chief Settlement come who dismissed them by one order dated 6th October, 1959, copy annexure B. Their revision against the order S. 33 of the Displaced Persons (compensation and Rehabilitation) Act was dismissed by the Central Government on 11th July 1960 copy annexure D.
(2) The two petitioners got the properties which they had abandoned in Pakistan by virtue of a will executed by their grandfather Shankar Das on 9th August, 1928 copy annexure C at Lahore. Their father Tara Chand was disinherited by his father Shankar Dass on account of mental weakness. The will amongst other things also provides: 'After my death 6/16 of the whole of my moveable and immovable property shall be owned by my son kishore Chand and the remaining 10/6 share thereof shall be owned by all the sons Tara Chand subject to the other conditions embodied in this will. Accordingly out of the immovable property have shown the same in list 'A' similarly I having set apart 10/16 share of immovable property have share of immovable property of all the sons of dear Tar Chand have shown the same in list 'B'' The will further provides.' The executors appointed by me should make over 10/16 share of the entire movable property and the immovable property shown in list 'B' to Tara Chand's eldest son (when he attains the age of 21 years) and to Tara Chand's wife. Similarly they should make over 6/16 shares of the movable and immovable property shown in list 'A' to Kishore Chand when he attains the age of 21 years.'
Shankar Dass soon after died and at the time of his death Bhupinder Parkash petitioners was not born. Sat Parkash petitioners only was then in existence. The estate of the deceased testator came under the superintendence of the High Court of Judicature at Lahore. It appears from the order dated 8th December, 1942, copy annexure E. that J. H. Monroe and attained the age 21 years was entitled to receive certain property bequeathed by the will of Shanker Dass which was then under the control of the Court in the hands of Mr. D. C. Ralli, Bar-at-Law as S. 151 and O. 40 R. I Civil P. C.., put in by Kishore jointly by him and Sat Parkash and Bhupinder Parkash minor through the Receiver.
(3) The petitioners in the writ petition impugned the order passed by the Settlement Officer on behalf of the Regional Settlement Commissioner the Deputy Chief Settlement Commissioner and the Central Government on the grounds that they were not competent to reopen their claims which had been verified under the Displaced Persons (Claims) Act, 1950, and that there was no evidence before them to show that the properties for which their claims had been separately verified in fact belonged to Sat Parkas petitioners alone or were coparcenary properties of the joint Hindu Family comprising of them.
(4) Mr. Y. L. Taneja Settlement Commissioner on behalf of the respondents filed the duly verified affidavit where in he maintained that the two petitioners sons of Tara Chand constituted a joint Hindu family that the separate claims verified in their favour represented the total assets of the joint family and were petitioners was minor on 29th September, 1955, and therefore and compensation calculated as if it was a claim of one unit under R. 19 Displaced Persons Compensation and Rehabilitation) Rules. According to him R. 20 did not apply since it was a case of the permission of the Court Mr. Gulab L. Ajwani Assistant Settlement Commissioner on behalf of the 31st December, 1963, wherein at p. 4 he stated.' The petitioners and his brother sons of Tar Chand may have constituted a joint Hindu family but qua the property in question they did not form a coparcenary.' According to him at the time of the testator's death Bhupinder Parkash was born many years later and so he took no interest in the demised date and the entire 10/16 share in the self-acquired property of Shankar Dass become the self-acquired property of his grandson Sat Parkas alone. As regards the partition proceedings between the different legatees before the High Court of Judicature at Lahore he mentioned that although in that settlement regarding partition of the demised estates Sat Parkash and Bhupinder Parkash were both shown as joint owners of 10/16 share bequeathed to the sons of Tara Chand but there was no determination of the rights of the parties on merits in that litigation.
(5) The learned counsel for the petitioners argued as it was also done before the Deputy Chief Settlement Commissioner that Shankar Dass could have executed the will in favour of his unborn grandsons under S. 2 of the Hindu Disposition of Property Act (No. 15 of 1916) which provides:
'2. Subject to the limitation and provisions specified in this Act no disposition of property by a Hindu whether by transfer inter vivos or by will shall be invalid by reason only that any person for whose benefit it may have been made was not in existence at the date of such disposition.' He also argued that both the petitioners got the property as tenants-in-common and not as joint tenants as held in the case Mt. Jio v. Mt. Rukuran, AIR 1927 Lal 126 which laid down:
'When a deed of gift or a will is in favour of two persons without any definite specifications of the extent of their shares they take as tenants-in-common and not as joint owners. The principle of joint tenancy is unknown to the Hindu Law except in connection with the joint Hindu family.'
He further referred to Section 111 of the Indian Succession Act, which runs as:
'111. Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator's death.
Exception--If property is bequeathed to a class of persons described as standing in a particular degree a kindred to a specified individual but their possession of it is deferred until a time later then the death of the testator by reason of a prior bequest or otherwise the property shall at that time go to such of them as are then alive and to the representatives of any of them who have died since the death of the testator.'
This section like other section mentioned in Sch III. of the Indian Succession Act was made applicable to all wills executed by any Hindu, Buddhist Sikh or Jain on or after the 1st day of January, 1927 by the Indian Succession Amendment Act No. XVIII of 1929. Thus it covered the instant will which was executed on 9th August, 1928.
It is admitted on all hands that Bhupinder Parkas was born before the Sat Parkas attained his majority. It is also specified in the will, as has been mentioned earlier, that possession of the property was to be deliver by the executors of the will to Sat Parkash when he attained the age 21 years and to Tara Chand wife obviously as guardian of her minor sons. The learned counsel from the above recital execute the will in favour of his unborn grandson and in view of the facts that possession of the property was to be delivered to Sat Parkas was in fact born the brothers got the property left by their grandfather by will in their favour as tenants-in-common.
The Deputy Chief Settlement Commissioner ignored the above clear provisions of law and facts proved on the file and admitted by the parties. He observed:
'The question is whether a bequest to an unborn grandson was valid or not as he was not in existence at the time. Under section 113 of the Indian Succession Act, 1925, this bequest seems to be invalid. It is only for the first time by the Transfer of Property Supplementary Act 21 of 1929, these provisions were Supplementary Act 21 of 1929 these provisions were applied and made uniform to Hindu gifts and wills case. If he died earlier then the property vested in Sat Parkash was not born and therefore he could not have been benefited form this bequest......... Even if the gift was valid to Shri Bhupinder Parkash the order of the High Court only shows that they were joint in 1942, that property was jointly held by Kishore Chand Sat Parkash and Bhupinder Parkash. They were separate only in 1942 and therefore at the most the sons of testator took as joint tenants and not as common tenants. There is no proof on record to show that Sat Parkash and Bhupinder Parkash had separated prior to the formation of Pakistan (Sic) of the country.'
It may be mentioned here that section 112 of the Indian Succession Act in no way invalidate the will executed by Shankar Dass. The learned counsel for the respondents conceded and frankly too that it was not possibly for him to support Mr. Taneja's affidavit where he urged that the property held by the two petitioners was coparceary property. He, however, stressed that since Bhupinder Parkash alone inherited 10/16 share of the property. In doing so he ignored the Exception to section 111 of the Indian Succession Act and the recital in the will that the executors were directed to deliver possession of 10/16 share of the property to Sat Parkash on his attaining the age of 21 years and Tara Chand's wife for and on behalf of her other minor sons. After carefully going through order of the Deputy Chief Settlement Commissioner I feel no hesitation in holding that he totally misapplied the law which vitiated his order. The Settlement Officer in his impugned order gave no reasons for clubbing the claims of the two petitioners which therefore does not require any scrutiny. The three impugned orders merit quashing.
(6) The learned counsel for the petitioners further maintained that the petitioners claims were duly verified by the Claims Officer under the provisions of the Displaced Persons (Claims) Act, 1950, and the Settlement Commissioner also after issuing so motu notice to Bhupinder Parkash under the Displaced Persons (Claims Supplementary) Act (No. XII of 1954) declined to interfere in the above verification of their claims. According to him in these circumstances the respondents were not competent to interfere in the above verifications of the petitioners claims under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. In my opinion he is justified in saying so. Under S. 6(3) of the Displaced Persons (Claims) Act the decision of the claims officer shall be final provided under that the Chief Claims Commissioner may call for the record of any case which has been decided by the Claims Officer and may make such order in the case as he thinks fit and no order varying the decision of the Claims Officer shall be made without giving the persons concerned an opportunity of being heard.
Section 10 bars jurisdiction of Civil Court in respect of any matter which the Chief Claims Commissioner or the Claims Officer is empowered by or under this Act to determine. It also says that no injunction shall be granted by any Court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. This provisions of law made the order of the Claims Officer in regard to the claims filed by the two petitioners as final. I have not been referred to nay provision in the Displaced Persons (Compensation and Rehabilitation) Act or the Rules made thereunder which empowered the respondents to interfere in the orders of the Claims Officer who had verified the petitioners claims. The learned counsel for the respondent made an attempt to show that the respondents could pass the impugned order under rule 9 of the Displaced Persons (Compensation and Rehabilitation) Rules. The reading of this rule will show that it relates to payment of compensation to joint families. The learned counsel also referred me to the case (1) Dharam Vir v. Union of India Civil Writ No. 63 of 1960 decided by Dua J., on 23-2-1961 (Punj)(2) Daljit Singh v. Union of India, Civil Writ No. 1577 of 1960 decided by Dua, J., on 6-4-1962 (Punj) and (3) Nithal Chand v. Govt. of India New Delhi AIR 1962 Punj 556. The first and third of these cases relate to the properties of joint Hindu families. Case No. 2 relates to the determination of legal representatives of a deceased claimant.
Obviously these authorities have no reference to the nature of dispute in the present case as had also been done by Gulab L. Ajwan I Assistant Settlement Commissioner in his affidavit on behalf of the respondent that the petitioners might have constituted of joint Hindu family but qua the property in question they did into form a coparcenary. What the respondent have done in this case is that they held the property for which the claims of Bhupinder Parkash had who never claimed the same. This obviously the could not have achieved under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. The orders passed by them in the matter were manifestly without jurisdiction.
(7) For the reasons given above both the Civil writ petitioners are allowed and the impugned orders are quashed but the parties are left to bear their own costs.
(8) Petition allowed.