P.S. Safeer, J.
(1) This appeal is directed against the decree dated the 25th of October 1961, made by a Sub-Judge First Class, Delhi, the foundation whereof is the impugned judgment made on the same date.
(2) The appellant, Parmanand Ahuja, instituted a suit against his two step-brothers, a step-sister and a step-mother for obtaining through partition his share in the businesses and properties including the verified claims to compensation which belonged to his deceased father Shri Lachhman Das Ahuja. The plaintiff filed Schedules A, B, C and D containing the particulars of various properties. In paragraph 10 of the plaint dated the 26th of February, 1959, the plaintiff stated :-
'10.That the said Shri Lachhman Dass Ahuja on 16th October, 1956, executed his 'will' according to which he bequeathed to the plaintiff 1/3rd share in the immovable properties mentioned in Schedule 'A' ; his 1/2 share in all the businesses including their all entire stocks, assets, outstandings, goodwill, Import Quota Rights, benefits, interests, and liabilities existing on the date of his death. The remainder 2/3rd of the immovable properties item Nos. 1 to 3 in Schedule 'A' he bequeathed to defendant No. 3; and the remaining 1/2 share in all businesses mentioned in schedule 'C' he bequeathed to defendants No. 1 and 2 in equal shares. He bequeathed the properties mentioned in schedule 'B' to all the defendants.'
(3) The plaintiff proceeded to state in paragraph 10-A of the plaint that regarding the verified compensation claims his late father had devised that firstly an amount of Rs. 10,000.00 shall be paid to the plaintiff and then out of the remainder a one-third share would be given to the plaintiff, and the two-third would go to his step-brothers. In paragraph 11 the plaintiff asserted that he was entitled to his share in the properties mentioned in the four schedules, as devised by the said will.
(4) Paragraph 11-A of the plaint contains the first departure from the stand the plaintiff adopted in paragraphs 10, 10-A and 11 thereof. It is :-
'11A.That on the other hand the plaintiff as son of the late Shri Lachhman Dass Ahuja is under the Law entitled to 1/5th share in the properties mentioned in Schedules A, B, C and D, and the defendants are entitled to l/5th share each.'
(5) It is clear that the plaintiff deliberately elected to assert his rights under the Hindu Law in respect of the properties enumerated in Schedules A, B, C and D. Schedule D contained the particulars regarding the verified claims on the basis whereof the plaintiff's late father was to receive compensation.
(6) Paragraph 13 of the plaint discloses that the plaintiff asserted that he was entitled to relief on the basis of the claim set up in para No. 11 or 11-A of the plaint. A reference to those paragraphs for once and all clarifies that while relief was claimed on the basis of an alleged will through the assertion contained in paragraph 11, it was claimed purely on the basis of the plaintiff's rights which he might have had under the Hindu Law in terms of the assertion contained in paragraph II-A of the plaint. The plaintiff was trying to obtain relief whether the adjudication was to be on the basis of the will or in the alternative on the basis of the plaintiff's rights which he might have established under the Hindu Law. Paragraph 14 deserves to be noticed in its entirety:-
'14.That the plaintiff is as per and under the said 'will' entitled to Rs. 10,000.00 out of the total compensation amount in the first instant and 1/3rd share out of its remainder and the defendants are not entitled to recover, receive or realise more than 2/3rd of the remaining amount of compensation for the plaintiff has been paid Rs. 10,000.00 and 1/3rd of the amount of the compensation of verified claims, but under the Law the plaintiff is entitled to 1/5th share in this compensation amount and the defendants are collectively entitled to 4/5th share of the compensation amount of claims (mentioned in Annexure D). The plaintiff is entitled to secure a permanent injunction restraining the defendants from receiving, recovering and Realizing directly or indirectly, in any manner whatsoever, the amount of compensation more than 4/5th as their share as mentioned above.'
(7) In the aforequoted paragraph, the plaintiff set up alternative pleas and claimed adjudication both under the will as well as under the Hindu Law. Paragraph 17 of the plaint, however, made a significant departure insamuch as the plaintiff urged :-
'17.That the plaintiff is as submitted above entitled to inherit the properties under the above mentioned 'will' dated 16-10-1956 vide para No. 11 above and in the alternative to inherit to the estate of the deceased Shri Lachhman Dass Ahuja vide para No. 11-A above. The plaintiff elects only to file the present suit and claim and have his share under the law as the son of the deceased Shri Lachhman Dass Ahuja vide para No. 11-A above.'
(8) The plaintiff clearly stated in the ultimate part of the aforequoted paragraph that he had elected to file the suit to claim his share only under the law as the son of deceased Shri Lachhman Dass Ahuja and thus he became confined to the relief based on the assertion contained in para 11-A of the plaint. The choice in para 17 constituted a clear abandonment of the rights which the plaintiff had previously urged as being available to him under the alleged will. Having so made the clear election in paragraph 17 of the plaint, the plaintiff, as is visible from paragraph 11-A thereof, claimed 1/5th share in the properties to which, according to his averment he was entitled under the law.
(9) It is clearly provided in order 23, rule 1 of the Civil Procedure Code, that a plaintiff may after the institution of the suit abandon any part of his claim. The present appellant, even when initiating the litigation, abandoned all rights which might have been devised to him under the alleged will and made a clear election to urge the suit so as to claim his share only under the law. Paragraph 23 makes his stand abundantly clear :-
'23.It is, thereforee, prayed that a decree for partition of the properties mentioned in Schedules A and B by change of joint ownership and possession into separate ownership and possession of plaintiff's 1 /5th share and a preliminary decree of 1/5th share of plaintiff for rendition of account of the various businesses mentioned in Schedule 'C' including their stocks in trade, assets, outstanding, goodwill, import quota rights, benefits interests and etc. and a final decree for payment of the amounts which be found due to the plaintiff on rendition of accounts from the defendants and a decree for permanent injunction restraining the defendants or either or more of them from receiving, recovering and Realizing directly or indirectly in any manner whatsoever more than 4/5th share collectively of the amount of compensation due under C.A.F. Registration No. ND/396/XXII/AUC of the verified claims standing in the name of Sh. Lachhman Das Ahuja on 20-5-1957 detailed in schedule 'D', 1/5th being payable to the plaintiff, be passed in favor of the plaintiff against the defendants with costs and any other relief which this learned court deems proper be also awarded'.
(10) It stands established that the plaintiff had through his prayer- paragraph abandoned the claim to any relief on the basis of any will. He prayed for a decree on the basis that he was entitled to 1/5th share in the properties mentioned in the various schedules, which share, according to the earlier averments in the plaint, he was entitled to obtain under the law.
3.The defendants raised several preliminary objections through the written statement dated the 28th of April, 1959, and pleaded that the plaintiff having alleged in paragraph 10 of the plaint that his deceased father had left a will he could not invoke the provisions of the Indian Succession Act. In paragraph 10 of the written statement the defendants denied for want of knowledge the existence of the will and stated that if there was any will the suit, as framed, did not lie.
(11) The plaintiff had not produced any will with the plaint. The defendants having noticed that aspect asserted in paragraph 14 of the written statement that the plaintiff had in the first instance claimed some rights on the basis of a will, which had not been produced, but had then waived those rights and that in such a situation having alleged that the deceased had left a will the plaintiff could not invoke the provisions of the Hindu Succession Act.
(12) The defendants pleaded that the plaintiff was precluded by the estoppel arising out of the compromise in the previous proceedings from bringing forward his claim through a regular suit. The defendants urged that the decisions recorded earlier in suit No. 281 of 1950 and the proceedings under section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, operated as res-judicata. The trial court framed the following preliminary issues:-
'1. Whether the suit is properly valued for the purposes of court-fee and jurisdiction If not, what should be the proper value ?
2.Whether the suit regarding injunction is maintainable qua amount of compensation to be received from the Rehabilitation Department ?
3.Whether the suit is barred by res-judicata ?
4.Whether the plaintiff is estopped from bringing the suit ?
5.Whether the suit on basis of Hindu Law or Hindu Succession Act is not maintainable because of the allegation that the deceased left a will ?
6.Is the suit barred by the Displaced Persons (Compensation and Rehabilitation) Act, 1954 ?
7.Is the suit barred by reason of earlier decision of Shri P. D. Sharma, Competent Authority under the Displaced Persons Act?
(13) Issue No. 1 having been decided on the 3rd of May, 1961, did not survive for any further consideration.
4. The judgment, on which the impugned decreee is based, deals in the first instance with issues 2, 6 and 7 and then with issue No. 5. Issues Nos. 3 and 4 were expressly excluded from consideration because the parties urged before the trial court that those issues needed to be decided on evidence which had yet to be adduced. As is clear, issues 2, 6 and 7 were concerned with the relief which the plaintiff had claimed in respect of his alleged share in the verified claims standing at one time in favor of his father and on the basis whereof late Shri Lachhman Das Ahuja could have obtained benefit by way of compensation. I am of the view that the court below had gone entirely wrong while dealing with issues 2, 6 and 7. The plaintiff had in terms of paragraph 23 of the plaint sought 'a decree for permanent injunction restraining the defendants or either or more of them from receiving, recovering and realizing directly or indirectly in any manner whatsoever, more than 4/5th share collectively of the amount of compensation due under C.A.F. Registration No. ND/396/XXII/AUC of the verified claims standing in the name of Shri Lachhman Dass Ahuja on 20th May, 1957, detailed in Schedule 'D' 1/5th being payable to the plaintiff'. Along with the plaint the plaintiff filed an application for obtaining an injunction to guard his rights during the pendency of the suit. It seems, the trial court issued a temporary injunction the terms whereof, which are material for the present consideration, were amended on the 20th April, 1959, and the relevant part of the order was:-'Till then the temporary injunction is amended to this extent that the defendants can get the compensation due to them from the Regional Settlement Commissioner on furnishing security for the 1/5th part (of compensation) undertaking to deposit the same in the court at the time when required.'
(14) On the 19th of December, 1959, when the pending applications for appointnt of a receiver and for issuing injunction orders were taken up the statements of the parties and their counsel were recorded. As appearing on page 28 of the paper-book the said statement was:-
'TOavoid controversy over the application for injunction and for appointment of receiver, the future income of the defendants in the business in suit shall be deemed to have been the average income during the years from 1st April, 1956 to 31st March 1959, the returns of which have been filed or will be filed with the income tax and sales tax authorities. If the returns are not filed, account books of defendants shall be looked into for it. The income shall be deemed to be the income which these authorities assess. If ultimately the plaintiff is held entitled to any share in the profits of the said business the average income in these three years shall be deemed to be the income in the forthcoming years for purposes of calculating the plaintiffs share. The defendants shall not alienate the house situated in Kamla Nagar, which is in suit. They shall of course be free to alienate the two plots mentioned in Schedule A after obtaining the permission of the Court and giving notice to the plaintiff with a view to assess the value of the plots, 1/5th of the sale price of these plots shall be deposited in fixed deposit with some bank in the name of the defendants for the time being which shall be available for the purpose of satisfying the decree, if any passed, in this suit. Subject to these statements both the application for injunction and for appointment of Receiver shall be deemed to have been dismissed as withdrawn. The injunction order already issued shall stand vacated accordingly. The cost of this application should be deemed to abide by the result of this suit.'
(15) In consequence of the above statement, the order passed was:-
'INterms of the statement of the parties and their counsel, the injunction application and the application for appointment of Receiver, shall be deemed to have been dismissed subject to the conditions contained in the statement given above. The cost shall be abide by the result of the suit. Counsel fee Rs. 50.00. Information about this order be sent to the claims authority. Announced.
DATEDthe 19th December, 1959'
(16) While the suit was still pending the plaintiff after about two years filed an application under section 151 of the Civil Procedure Code bearing the date 7th October, 1961. In paragraph 1 of that application the plaintiff referred to the order dated the 20th of April, 1959, by which the defendants had been allowed to realise or recover the amount of compensation from the Regional Settlement Commissioner by furnishing security for payment of 1/5th share of the said amount to the plaintiff, if and when decreed. According to the plaintiff the security was to be furnished to the court. Then in paragraph 2 of the application the plaintiff made a clear assertion which the trial court should have noticed:-
'2.That the plaintiff learns that the defendants have got adjusted the amount of compensation as an associate and have thus recovered the amount of compensation without furnishing security which was a condition precedent.
IT is now prayed that the defendants be ordered to furnish security in terms of the order dated 20th April, 1959, immediately.
IT is further submitted that status and position of the surety be got verified by the plaintiff'.
(17) The said application was supported by an affidavit. The trial court should have considered the effect of the application and the affidavit. On his own showing the 'plaintiff remained no longer entitled to any relief which he could have received by way of a permanent injunction as prayed for through paragraph 23 of the plaint and without the amendment of the plaint the court could not have dealt with the alleged verified compensation claims as detailed in Annexure 'D' filed along with the plaint. The trial court, however, issued a notice to the defendants calling upon them to file a reply to the plaintiff's aforequoted application dated the 7th of October, 1961. The defendants filed a reply dated the 12th of October, 1961, in the course whereof they detailed the various orders passed by the court while dealing with the application for issuing injunction and stated therein that the court had on the 19th of December, 1959, dismissed the application for injunction in terms of the order recorded on that date. It was asserted by the defendants that after dismissing the application for injunction the trial court had sent a letter dated the 21st of December, 1959, to the Settlement authorities informing them that the injunction had been vacated. The defendants did not deny that they had got adjusted the entire amount of compensation as associates by utilising all that was due in respect of the verified claims mentioned in Schedule D filed along with the plaint.
(18) The determination of issues 2, 6 and 7 became redundant in such a situation. The trial court was no longer to determine whether the suit regarding the injunction was maintainable or not in respect of an amount of compensation yet to be received from the Rehabilitation Department. It was no longer to be decided whether the suit was barred or not in respect of the plaintiff's share in the verified claims because of the provisions contained in Act 44 of 1954. It was no longer to decide under issue No. 7 whether the suit was barred by the decision recorded by Shri P. D. Sharma as competent authority under the Displaced Persons (Compensation and Rehabilitation) Act. There was nothing left which could have been opened up before any of the authorities which might have functioned under the aforesaid Act.
(19) The trial court, however, noticed section 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, which provision has also been urged before us while making the submission that the jurisdiction of the civil court was barred in terms of section 36 of the said Act and no civil court could deal with the matter which could have been dealt with under section 9 thereof. Section 9 of the said Act is:-
'9.Payment of compensation in cases of disputes.-Where there is any dispute as to the person or persons who are entitled to the compensation (including any dispute as to who are the successors-in-interest of any deceased claimant to compensation) or as to the apportionment of compensation among persons entitled thereto, such dispute shall, after such enquiry as may be prescribed, be entitled,-
(A)where the value of the verified claim does not exceed twenty thousand rupees, by the Settlement Officer;
(B)where the value of the verified claim exceeds twenty thousand rupees, by the Settlement Commissioner:
PROVIDED that the Settlement Officer or the Settlement Commissioner, as the case may be, may refer any such dispute to the District Judge nominated in this behalf by the State-Government, whose decision thereon shall be final.'
(20) No authority can act under the afore-quoted provision unless there is any dispute with which it can deal.
(21) After the defendants had got adjusted the amount of all the verified claims as associates there was nothing left in respect whereof any dispute could have been dealt with under section 9 of the Act. If the plaintiff was at any time entitled to his 1/5th share in the verified claims after the defendants had utilised the same, the plaintiff was to seek his remedy against the defendants by claiming appropriate relief. The event having taken place after the institution of the suit the plaintiff was to find his cause of action on the basis of the allegation that the amount due to him even had been got adjusted by the defendants as associates and in a fresh litigation the plaintiff could have put forward a distinct claim giving it a distinct valuation and asking for a decree either for money or for damages. The contentions covered by issues 2, 6 and 7 did not survive for being dealt with. The trial court was faced with a situation were the plaintiff had not sought any amendment of the plaint. The trial court should have held that issues 2, 6 and 7 did not survive for any determination.
5.We may mention that in the course of this appeal the plaintiff has preferred an application for amendment of the plaint. Civil Miscellaneous No. 9 of 1972, the said application, has been replied to by the respondents to this appeal and we have heard the parties' counsel. The application has been primarily urged on the submission that such amendments are necessary in order to clarify that the plaintiff had as a matter of fact pressed the suit on the basis of his well-defined alternative plea that he was entitled to receive his share in accordance with Hindu Law. The plaint being unambiguous we cannot allow amerndment on an application dated the 3rd of January, 1972, and more so when the proposed amendments are found traveling beyond the subject-matter in controversy between the parties. Civil Miscellaneous 9 of 1972 is dismissed but without costs.
6.While dealing under issue No. 5 the trial court dismissed the suit filed by the appellant on the finding that it was not maintainable in the form in which it had been filed, as its maintainability was hit by section 8 of the Hindu Succession Act. That provision is:-
'8.General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
(A)firstly, upon the heirs, being the relatives specified in class 1 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;
(E)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 no agnate, then upon the cognates of the deceased.'
(22) The question is when would a person be held to have died intestate The Privy Council in Lala Duni Chand and others v. Mt. Anar Kali and others observed-
'The words 'dying intestate' are a mere description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male. The words merely mean 'in the case of inttacy of a Hindu male'.
(23) There is no clear discerning of the meaning of the word 'intestate'.
INChambers Twentieth Century Dictionary of the English Language (Revised Edition), one of the meanings given to the word 'intestate' is:-
'Aperson who dies without making a valid will.'
(24) The Webster's Third New International Dictionary under the word 'intestate' at item 1 says:-
'HAVINGmade no valid will.'
(25) A reference made to Halsbury's Laws of England, Third Edition, Volume 16, at page 393, whereon paragraph 759 is continued, clarifies that Rules of Intestate Succession were to apply to all properties of which the deceased owner died intestate. In paragraph 761 at page 394 while dealing with 'Intestacy' it is stated in the same Volume:-
'INTESTACYmay be either total or partial. Total intestacy occurs where a man makes no effective testamentary disposition of any of the property of which he is competent to dispose by will. Partial intestacy occurs where the testator's will though partly effective either altogether fails to dispose of some specified property of the testator or having purported to dispose of all his property has failed to dispose effectively of some interest which has arisen in consequence of the will as for instance a reversionary interest or a life interest.
(26) After giving all possible consideration, I am persuaded to hold that section 8 of the Hindu Succession Act, 1956, would apply to a male Hindu who dies without leaving a valid will to which effect can be given in law so as to determine the succession as devised by his will. A male Hindu would not be held to have died intestate where it is established that he has left a valid will to which effect can be given so as to determine the devolution of his property with which the will may be concerned. A male Hindu may die intestate in respect of those of his properties which may not be covered by the will. Where a testator by forgetfulness, inadvertence or because of some other circumstance leaves some of the properties belonging to him undisposed by a will there will be no such vacuum as to annul the application of section 8 of the Hindu Succession Act. Where there is a valid will devising the succession and it is given effect to, it will apportion the properties to the successors in accordance with itself but where there is no valid will the devolution will be in accordance with section 8 of the Hindu Succession Act.
7.Before a court of law can determine whether a male Hindu has died intestate or not, it will have to determine whether he has or not as a matter of law,left a valid will which can be acted upon, and in accordance with which the properties can devolve upon the successors of the deceased.
8.We find the trial court has gone wrong while dealing with issue No. 5. The plaintiff-appellant had clearly elected to seek relief on the basis of the assertions contained in paragraph 17 of the plaint. He had asked for a decree in terms of para 23 of the plaint. The consideration of sections 180 and 181 of the Indian Succession Act was irrelevant. The appellant was entitled in law to confine his claim to the relief on the basis of the Hindu Succession Act. He had not produced any will when he filed the suit. In the course of the proceedings before the trial court, on 1st of December, 1959, the appellant made a categorical statement:-
'Icould not trace the will in question.'
(27) The trial court had never the occasion to look at any will and to adjudicate as to whether there was a valid will ever executed by late Shri Lachhman Das Ahuja, the father of the appellant. In such a situation, the trial court had never made the preliminary determination as to whether there was or not an existing valid will of the deceased so as to oust the application of section 8 of the Hindu Succession Act.
9.With the finding on issue No. 5 that the suit filed by the plaintiff- appellant on the basis of Hindu Law is maintainable, it is remitted back for retrial. The appeal is allowed with costs