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Himmat Singh Sandhu Vs. Joginder Singh Sandhu, Etc. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 2580 of 1982 and Suit No. 429 of 1982
Judge
Reported in1983(4)DRJ294; 1983RLR175
ActsHindu Marriage Act, 1955; Code of Civil Procedure (CPC), 1908 - Order I, Rule 10 - Order 6, Rule 16 - Order 23, Rule I
AppellantHimmat Singh Sandhu
RespondentJoginder Singh Sandhu, Etc.
Advocates: M. Wadhwani,; S. Pappu and; M.S. Mann, Advs
Cases ReferredIn Palani Animal v. Muthuvenkatachala Moniagar and
Excerpt:
hindu law - once a coparcener files a suit for the partition of the joint family it is not open to him to nullify its effect unless all the members of the joint family agree to it. a suit for partition of the joint family once filed can be withdrawn only when all the members of the family agree. - - the remaining co-parceners without any special agreement amongst themselves, might continue to be co-parceners and to enjoy as members of a joint family what remained afte such a partition of the family property. (22) it is well-settled that in a suit for partition all the parties are coplaintiffs......singh sandhu, and his sisters guramrit kaur sandhu and miachelle sandhu, for partition of the joint family property and for rendition of accounts. it is his case that his father, two sisters and himself constitute a joint hindu family. it is averred that plaintiff's mother expired in a road accident on 29th december, 1979. she was also a member of the joint hindu family. the plaintiff and his father are co-parceners. the details of the immovable property are given in paragraph 2 of the plaint. it is stated that besides that property the family also is possessed of lot of jewellery and other movable properties. defendant no. 1, it is stated, is the karta of the joint hindu family and in that capacity he has been managing the immovable property and also operating the lockers and bank.....
Judgment:

Charanjit Talwar, J.

(1) This is an application by Mrs. Vanita Sandhu wife of Joginder Singh Sandhu. defendant No. 1, under Order I Rule 10 of the Code of Civil Procedure, for being imp leaded as a party in the suit.

(2) To appreciate the contentions raised in the application, brief facts of the suit may be noticed.

(3) The plaintiff herein, Himmat Singh Sandhu, has filed this Suit against his father, Joginder Singh Sandhu, and his sisters Guramrit Kaur Sandhu and Miachelle Sandhu, for partition of the joint family property and for rendition of accounts. It is his case that his father, two sisters and himself constitute a joint Hindu family. It is averred that plaintiff's mother expired in a road accident on 29th December, 1979. She was also a member of the joint Hindu family. The plaintiff and his father are co-parceners. The details of the immovable property are given in paragraph 2 of the plaint. It is stated that besides that property the family also is possessed of lot of jewellery and other movable properties. Defendant No. 1, it is stated, is the Karta of the joint Hindu family and in that capacity he has been managing the immovable property and also operating the lockers and bank accounts of the family. The grievance is that after the death of Smt. Jasjivan Kaur, plaintff's mother, his father got entangled with an American woman whom the defendant 'purported to have married' aid under her influence has started neglecting the members of the family and has further entered into agreements to sell the immovable properties. It is further averred that defendant No. 1 has taken out of India a large amount of money belonging to the famly. It is stated in paragraph 7 of the plaint that defendant No. 1 has appropriated about 10 lakhs of rupees for his own use and for transferring the same in the name of that American woman. thereforee, the present suit seeking partition of the joint Hindu family property by metes and bounds and further for rendition of accounts, has been filed.

(4) Defendants were duly served. As defendant No. 3 was stated to be a minor, her real sister, defendant No. 2, was appointed guardian ad litem on 29th March, 1982. By the same order it was directed that defendant No. I would not finalise the transactions in dispute and was directed to file in court copies of agreements alleged to have been entered into by him with the prospective buyers.

(5) The present application has been filed by the wife of defendant No. 1. It may be noticed that prior to filing of this application, defendant No. I had moved an application on 29th March, 1982, the date of the first hearing, under Order 6 Rule 16 of the Code of Civil Procedure Seeking that 'scandelous and frivolous' remarks made in the plaint against his wife be directed to be deleted. It is affirmed therein that the plaintiff' is fully aware that the person referred to by him in that uncalled for manner is his step mother'.

(6) In the application, it is submitted, that the marriage of the applicant With defendant No. 1 was performed at the family residence, E- 10A, defense Colony, New Delhi, according to Hindu/Sikh rites and it was registered With the Registrar of Marriages, Delhi, on 5th March, 1981. The applicant avers that it is the plaintiff and defendants 2 and 3, his sisters, who from the very beginning made her feel unwelcome in the house and abused and insulted her. It is alleged that defendant No. 1 under pressure from the children has totally neglected her (the applicant). She has been constrained to take on rent and reside temporarily in totally inadequate and even insanitary accommodation and has been reduced to the status of a pauper, it is urged. As she is a member of the family, she is entitled to a share equal to the son and is, thereforee, a necessary party in the present suit which is for partition of the family property. It is, thereforee, prayed that she be added as defendant No. 4 and time be granted to her to file written statement.

(7) The plaintiff is contesting this application. According to him the applicant is a stranger to the family and, thereforee, has no status, right or title to the family property. In reply on merits in paragraph I it is stated, 'Para 1 of the application is a matter of record of this Hon'ble Court. However on reconsideration of law, the plaintiff had on the previous date made a prayer to this Hon'ble Court for permission to withdraw the suit unconditionally'.

(8) On 21st July, 1982, when this application was listed for preliminary hearing learned counsel for the plaintiff and defendants had sought adjournment to enable. them to come to a settlement as according to them negotiations were then going on for the same.

(9) While directing the parties to file replies to the instant application I adjourned the matter to 23rd August, 1982. Minutes of proceedings of that day read as under :

'MR.Wadhwani, learned counsel for the plaintiff and Mr. Sakhuja, learned counsel for defendant No. 1 submit that the parties have arrived at a set lement, A joint application under Order 23 Rule I of the Code of Civil Procedure for recording the compromise between them is being filed in the Registry to-day. It is in the interest of justice that a copy of this settlement be given to counsel for Smt. Vanita Sandhu, whose applications, 1. As., No 2580 and 2581 of 1982 are already pending'.

(10) All the applications including those filed Smt. Vanita Sandhu as also the suit were directed to be posted for hearing on 3rd September, 1982.

(11) On a joint request suit was adjourned on 3rd September, 1982, to 20th September, 1982, on which date Mr. Wadhwani submitted that the plaintiff wanted to withdraw the suit against all the defendants.

(12) Learned counsel for the applicant submitted that the suit was not liable to be withdrawn as the applicant as a member of the joint family was within her right to be imp leaded as a party. She relied on Tukarni Mahadu Tandel v Ramdandra Mahadu Tandel and others, Air 1925 Bom 425, in support of her contention that an applicant in a suit for partition of the Hindu joint family properties, is deemed to be a co-plaintiff. After hearing counsel I refused permission to the plaintiff to withdraw the suit. By that date neither reply to this application had teen filed by the Parties to the suit nor was the joint application for recording the compromise moved by them. I adjourned the matter to 2nd November, 1982. The reply by the plaintiff was filed on 29th October, 1982. The statement made in the reply that the plaintiff wanted to withdraw from the suit was recorded by me on 1st December, 1982, on which date he stated :

'Iwithdraw this case unconditionally'

297

(13) While deciding the application the effect of the statement of the plaintiff has also to be considered.

(14) As noticed above, in the application filed under Order 6 Rule 16 of the Code of Civil Procedure defendant No. I has categorically stated that applicant is his lawfully wedded wife. That fact is established from a copy of the register of marriages under the Hindu Marriage Act, 1955, filed by the applicant and as such cannot be disputed. It is the case of the plaintiff that the parties are members of the joint Hindu family known as joint Hindu family of S. Joginder Singh Sandhu and that the he and defendant No. I who is Karta of the family, are co-parceners. It, thereforee, cannot be denied, as has been done by the plaintiff in the reply to the application, that the applicant being wife of defendant No. 1 is not a member of family. Mr. Sakhuja, learned counsel for defendant No. 1 conceded so. His plea, however, is that the application is not entitled to a share in the property of the joint Hindu family till such time the partition is effected. According to him the plaintiff is wanting to withdraw from the suit, the applicant is not competent to carry on the action for partition of the joint Hindu family property as she is not in law competent to bring an action for the same He submits that if the suit had not been withdrawn the applicant would be entitled to ask for being imp leaded as a necessary party a on partition she is entitled to a share of a son but as soon as the suit is withdrawn her application althogh filed earlier than the statement of the plaintiff is to be rejected as it has become infructuous.

(15) Mrs Shymala Pappu, learned counsel for the applicant, however, submits that by filing the suits the plaintiff as a co-parcener has given his unequivocal and unilateral declaration of his intention to the other members of the family to separate from them and claim his sharein the joint Hindu family property. It is urged that declaration of that intention has resulted in the severance of the joint Hindu family status. It is thereafter not open to the plaintiff to nullify the effect of severance of the joint Hindu family by withdrawing the suit. The argument is that to restore the family into its original joint status compromise between all the members of the family including the applicant is necessary. The applicant is not ready and willing to restore that status to the family. In support of her contention the learned counsel relied upon Puttrangamma and others v. Ms Rangana and others, : [1968]3SCR119 . In paragraph 5 of this authority, it has, inter alia, been observed:

'WHENonce a communication of the intention to separate is made which has resulted in the severance of the joint family status, i is not thereafter open to the coparcener to nullify its effect so as to restore the family to its original joint status'.

(16) The view of the Madras High Court in At Radhakrishana v.K. Satyanarayana Air 1949 Mad. 173 wherein it was held that 'a division in status had already been brought about by the plaint in the suit and it was not open to the plaintiff to revoke or withdraw the unambiguous intention to separate contained in the plaint, so as to restore the joint status and as such the members should be treated as divided members for the purpose of working out their respective rights,' was approved by their Lordshops of the Supreme Court in the above-cited authority.

(17) The law laid down by the Supreme Court squarely applies to the facts in the present case.

(18) The authorities cited by Mr. Sakhuja are distinguishable on their own facts.

(19) In Palani Animal v. Muthuvenkatachala Moniagar and others , it was held that the mere fact that the shares of the co-parceners have been ascertained does not by itself necessarily lead to an inference that the family had separated nor was the mere filing of a suit for partition was an evidence at separation although it would afford evidence that an intention to separate had been entertained. It was further held that a member of a joint family could separate himself from the other members of the joint family and was on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him. The remaining co-parceners without any special agreement amongst themselves, might continue to be co-parceners and to enjoy as members of a joint family what remained afte such a partition of the family property.

(20) This ratio is not applicable to the facts of the instant case. The plaintiff herein wants to withdraw the suit where by the joint family stood separated. It is not open to him to nullify its effect unless all the members including the applicant agree to that. The next case cited by Mr. Sakhuja was Mt. Parbad Devi v Bansi Dhar and others : AIR1943All360 , is also not applicable to the facts of the present case. It was observed therein that in a Hindu family a member is entitled to maintenance so long as the family remains joint. If the sons effect a partition between themselves, the mother is entitled at the time of partition to a share equal to the share of a son which she receives in lieu of maintenance. The joint family in the instant case has been severed by the filing of the suit. The applicant is entitled to her share in lieue of the maintenance which she is otherwise entitled to. Now the Court in a suit for partition is only to ascertain her share.

(21) In this view of the matter, the applicant a necessary party is entitled to be imp leaded as a defendant. She entitled to her share on the severance of the joint Hindu family. The agreement of the other members to remain joint does not affect her claim to that share.

(22) It is well-settled that in a suit for partition all the parties are coplaintiffs. The plaintiff herein wants to withdraw the suit. He cannot be allowed to do so. However, he can withdarw himself from the suit. While permitting him to do so, the applicant has by necessity to be transposed as a plaintiff. I order accordingly.

(23) The application is allowed but with no order as to costs,

(24) The applicant is directed to file amended memorandum of parties whithin two weeks.


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