Skip to content


Santosh Kumar JaIn and anr. Vs. Bahadur Singh JaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 281 of 1974
Judge
Reported in1982(3)DRJ377; 1982RLR672
ActsLimitation Act, 1963; Court Fees Act, 1870 - Sections 7(4)
AppellantSantosh Kumar JaIn and anr.
RespondentBahadur Singh JaIn and anr.
Advocates: S.L. Bhatia and; Ravinder Sethi, Advs
Excerpt:
.....partition of a joint hindu property, he represents his smaller family in that partition and his sons and grandsons are treated as bound by them. limitation act, 1963 a son who was not borr at the time of the transaction does not get extension for filing a suit till he attains majority. court fees act, 1870 - section 7(4)(c) if the nature of reliefs claimed in the plaint shows that further reliefs are available and the plaintiffs are seeking them, the suit has to be valued under section 7(4/c) of the court fees act if reliefs by way of declaration and injunctions are claimed, court fee on the full value of the properties involved has to be paid. - - 1. whether the suit is bad for non-joinder of necessary parties? (14) the non-impleading of ranjit singh and his children renders the..........'deed was executed between mehboob singh and his four sons resulting in partition of the several joint properties. another partition deed was executed between them on 2nd october 1943. the result was the severance of joint status between them as also division of joint properties.(3) 'a relinquishment-deed was executed by mehboob singh in favor of his sons on 18.8.1944 relinquishing his rights in certain properties, in their favor.(4) thereafter on 3 8.1953 daryo singh jain defendant no : 3 executed a sale-deed of one of the properties got by him in favor of smt. chaman kali who is the wife of defendant no : 1.(5) mehboob singh before his death executed a will dated 3rd april 1956. in terms of this will, mehtab singh defendant no : 4 required to transfer certain properties in favor of.....
Judgment:

D.R. Khanna, J.

(1) Mehboob Singh Jain, who died in 1957, was the common ancestor of the parties. He had four sons namely Mehtab Singh (defendant No. 4), Ranjit Singh, Bahadur Singh Jain (defendant No : 1) and Daryao Singh Jain (defendant No: 3). The plaintiffs are the sons of Mehtab Singh.

(2) On 18.6.1942, Mehboob Singh executed a gift-deed of the property ' in fayour of Bahadur Singh defendant No: 1 on the next day a partition 'deed was executed between Mehboob Singh and his four sons resulting in partition of the several joint properties. Another partition deed was executed between them on 2nd October 1943. The result was the severance of Joint status between them as also division of joint properties.

(3) 'A relinquishment-deed was executed by Mehboob Singh in favor Of his sons on 18.8.1944 relinquishing his rights in certain properties, in their favor.

(4) Thereafter on 3 8.1953 Daryo Singh Jain defendant No : 3 executed a sale-deed of one of the properties got by him in favor of Smt. Chaman Kali who is the wife of defendant No : 1.

(5) Mehboob Singh before his death executed a will dated 3rd April 1956. In terms of this will, Mehtab Singh defendant No : 4 required to transfer certain properties in favor of Bahadur Singh defendant No'.l. This Mehtab Singh did by sale deed dated 11.5.1957.

(6) Reference has been made to these transactions as the plaintiffs are seeking declarations that they are null and void and do not bind them as the properties were ancestral. They have also sought fresh partition. Further relief by way of mandatory injunctions has been claimed requiring the defendants to hand them over the possession of the properties and further Stop using them as their own under those documents. The defendants are also sought by a perpetual injunction from asserting that they have any interest in these properties. A decree for accounts has besides been prayed for.

(7) The defcndants in their written statement have inter alias contendded that the suit is manifestly barred by time and further that it has not been properly valued for purposes of court fee and jurisdiction. It has also pointed out that Ranjit Singh, one of the sons of Mahboob Singh, who was a party to the two partition deeds has not been imp leaded in the suit, and in his absence, any declaration granted with regard to the validity of those documents would' be inoperative qua him. Further relief by way of partition would also not be permissible in the absence. The locus standi for the plaintiffs to file the present suit has also been assailed.

(8) 4.3.1976, issues in the suit were framed and thereafter it Was set for recording, of evidence. As this evidence was' proceeded to be recorded on 5-4-1982, it was policed that issues No : 1 to 4 were legal and in case the defendants succeed in proving the contentions which form subject-matter if these issues, there may not be any occasion, for recording of evidence on merits. It was thereforee directed that parties should address arguments on issues No I to 4 which are to the following effect: 1. Whether the suit is bad for non-joinder of necessary parties? 2. Whether the plaintiffs have any locus standi to file the present suit?: 3. Whether the suit has been properly valued for the purposes of jurisdiction and court fee? 4. Whether the suit is within limitation? 379 Issue No : 4 This issue in fact is an important one and may determine whether the suit brought in the year 1974 .can at all be treated as within limitation. The narration of transactions which are Sought to be, impeached in this suit shows that they took place between the year 1942 and 1957. The declaration sought for in this suit assailing be validity of these deeds on the face of it are thus based by time. Under Art 58.o the Schedule to the Limitation Act for for obtaining daration, the terminum quo is when the right to sue first accrue, The emphasis is thus on the first accrual. Any sub sequent case to aggrieved may not justify the extension of limitation for seeking declaration.

(9) , As a result of long course of events taking place under the said documents, there been implementations and the sons of Mahboob Singh acting accordingly. The yourgest of the plaintiffs was Stated to have been born in the year 1950 as per plaintiffs own version. Thus he became major in the year 1968. Maximum extension which he could thereforee obtain for instituting the suit because of the the minority was of three years. The suit thereforee could have been brought by him at the most in the year 1971. This was not done Instead the suit was brought in the year 1974 which patently is barred by time.

(10) Moreover a son who was not born at the time of the transaction does riot get extension for filing a suit till his majority. The right to challenge such transaction is.available to the coparceners who were in existerice tence at the when it took place. The basic coparceners in the present case took place in the year 19.42 43 and thereforee it is too late in the day to now impeach them.

(11) TH'E contention of the plaintiffs is that in case the partitions which took place in the year 1942 and 1953 are eliminated, the joint character of the properties should be treated to be subsisting and as stuch the plaintiffs can be taken , be be still in joint possession. As such the right to obtain partition of joint properties, it is pleaded is not barred in any manner and remains open as long as the properties continue joint.

(12) I am afraid this contention cannot prevail as it necessarily presupposes that the properties have been joint. This has not been the position. as the partitions infact took place in the year 1942-43. Till thereforee the plaintiffs get those partitions declared as void and inoperative they cannot be heard to plead that the properties still continue to be joint. The limitation , for getting those partitions declared void expired long before the instution of the suit.

(13) I thereforee hold that the suit is manifestly barred by time. Issue No: 1 Another infirmity in the present suit is that Ranjit Singh one of the sons of Mahbob Singh has not been imp leaded as a party. In case the partions of 1942 and 1943 are treateed as inoperative and fresh partitions are ordered, his presence in the suit is absolutely necessary. That Ranjit Singh is now stated to have died in the year 1978 but it is not disputed that he has sons and. other children are alive. They thereforee ought have been imp leaded as partics. The suit was thus clearly bad for non-joinder of Ranjit Singh, and now his children.

(14) The non-impleading of Ranjit Singh and his children renders the suit in worst position so far as the limitation aspect is concerned. As per averments made in the plaint, the cause of action according to the plaintiffs arose in favor of them in 1974. Till this year 1982, no application has been moved by the plaintiffs for impleading Ranjit Singh or his children as parties, In case they are now required to be made partics, the suit quo them will be treated as instituted from that date. The matters, looked in this context renders the suit as hopelessly barred by time. Issue No: 3 During the course of arguments under this issue the defendants have sought to plead that since the plaintiffs have apart from seeking declarations in this suit prayed for grant of injunctions and other reliefs, the proviso added to Section 34 of the Specific Reliefs Act comes into play and thereforee the suit should be treated as one for declation with consequential relief. In that case it is pointed out that under Section 7(4)(c) of the Court Fees Act, the court-fee should be paid on the values of the properties about which declarations are Sought.

(15) Objection has been raised to this contention of the defendants from the side of plaintiffs on the ground that its realm is more in the nature of the reliefs claimed and the maintainability of the suit. It is pointed out that the defendants have not pleaded in the written statement that the suit is not maintainable in the form brought. As regards the payment of court-fee on the reliefs actually claimed and in form brought, it is pointed out that the court fee has been correctly paid, except with regard to the relief for partition which has been affixed with court fee of Rs. 13.00 while it should have been Rs.19.50.

(16) The plaintiffs have apart from seeking declarations in this suit sought two injunctions also. This circumstance by itself shows that further reliefs are available to the plaintiffs apart from the declaration sought when such reliefs are available, the plaintiffs are precluded from seeking mere declarations. The provisions of Section 34 of the Specific Relief Act in this regard are mandatory and do not permit a mere relief of declaration being granted where consequential relief is as well available. That being the position of law, I am not inclinded to ignore these provisions, irrespective of specific plea having not been raised by the defendants in the written statement. The nature of the reliefs claimed in the plaint itself shows that the further reliefs are available and the plaintiffs arc seeking them. The suit has in the circumstances to be treated as under Section 7(4)(c) of the Court Fees Act in so far as the reliefs by way of declaration and injunctions arc concerned. The plaintiffs have thereforee to pay court-fee on the full value of the properties involved as per amendment made to Section 7(4)(c) in Punjab and Delhi.

(17) In view of the decisions on issues No. 1, 3 and 4. I need not go into issue No. 2. It may however be taken note that the principal is well recognised that when a father joins partition of the joint Hindu Family properties, he represents his smaller family in that partition, and his sons and grand sons arc treated as bound by the same.

(18) The result thereforee is that the suit of the plaintiffs is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //