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Chandu and ors. Vs. Kirpa Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 85 of 1949
Judge
Reported inAIR1952HP65
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 75 - Order 26, Rule 11; ;Hindu Law
AppellantChandu and ors.
RespondentKirpa Ram and ors.
Appellant Advocate D.N. Agarwal, Adv.
Respondent Advocate R.S. Bhasin, Adv.
DispositionAppeal allowed
Cases ReferredSri Gopal v. Pirthi Singh
Excerpt:
- .....inter alia that the partition effected by the arbitrators was a complete partition of the entire family property. 5. the property sought to be partitioned, and detailed at the foot of the plaint, being vague to a degree, the trial court ordered the plaintiffs to file full particulars of the same. these particulars were thereupon filed by the plaintiffs, and they are as follows : (after stating the particulars the judgment proceeded:) 6. the trial court, merely holding that some, but not what, properties had been left joint by the arbitrators in the former suit, passed on 22-2-1948 what it called a preliminary decree for accounts, appointing a commissioner to ascertain that fact. this was a wholly unwarranted procedure adopted by the court. no question of issuing a commission for.....
Judgment:

Chowdhry, J.C.

1. This is a defendants' first appeal arising out of a suit for partition between members of a Hindu trading family. As this is an appeal which was pending before the Chief Judicial Officer, Simla Hill States, it stood referred to this Court for decision as a Judicial Committee under Section 35 of the State Courts Act, 1943, by the Chief Commissioner Himachal Pradesh by Notification No. J-79-15/48, dated 14-1-1949.

2. The relationship between the parties will appear from the following genealogical table.

DEVIDAS

|

--------------------------------------------------

| | |

Pooram Goria Bhibia

| | |

------------- -------------------- Jiwanu

| | | | | |

Durga Dhunda Bali Ram= Gokul Kirpa Ram ----------

Defebdant Deceased Mt. Ratni Plaintiff Plaintiff | |

window Sohanlal Chandu

Plaintiff Defendant. Defendant.

3. Two of the present appellants, Chandu and Sohanlal, representing one of the three branches, filed a suit for partition in Section 1998 against the members of the other two-branches. The parties referred their dispute to arbitration through Court, and the arbitrators gave an award on 16-5-1999. The award was accepted by the parties, the plaintiffs thereupon withdrew the suit, and it was dismissed on 30-5-1999.

4. On 15-9-1999, the present suit was filed by members of one of the two branches who were defendants in the former suit. The present defendants are members of the other two branches. The reliefs claimed are rendition of account of family money-lending business and possession by partition on one-third share of all family movable and immovable properties. The allegations on which these reliefs are claimed are that the arbitrators were guilty of misconduct and did not properly take accounts or partition the property, the only property partitioned by them being a sum of Rs. 18,000 in plaintiffs' possession. The defendants pleaded, inter alia that the partition effected by the arbitrators was a complete partition of the entire family property.

5. The property sought to be partitioned, and detailed at the foot of the plaint, being vague to a degree, the trial Court ordered the plaintiffs to file full particulars of the same. These particulars were thereupon filed by the plaintiffs, and they are as follows : (After stating the particulars the judgment proceeded:)

6. The trial Court, merely holding that some, but not what, properties had been left joint by the arbitrators in the former suit, passed on 22-2-1948 what it called a preliminary decree for accounts, appointing a Commissioner to ascertain that fact. This was a wholly unwarranted procedure adopted by the Court. No question of issuing a commission for examination or adjustment of accounts under Section 75 (c) or Order 26, Rule 11, Civil P. C., had arisen. The first thing which the Court had to decide was whether any, if so which, of the properties in suit had been let joint or unpartitioned by the arbitrators in the former suit. Only in case this had been decided in favour of the plaintiffs, it would possibly have become necessary to appoint a Commissioner for the purpose. For instance, if it were found that the money-lending at Simla, that being one of the items of the aforesaid particulars, had been left joint, the Court might have appointed a Commissioner to examine those accounts with a view to ascertaining the extent of realisations. It is manifest therefore that in appointing a Commissioner, as it did the Court exceeded its powers of issuing a commission, for, it delegated to him the performance of its own judicial functions.

7. The main question for determination in this case, as already stated, is whether any, if so which, of the properties in suit had been left joint or unpartitioned in the former suit. This question, as adverted to above, has been left undecided by the trial Court, but the necessity of a remand has been obviated by the learned Counsel agreeing that the parties have led evidence on the point and it may be decided by this Court on that evidence. It may be stated here in passing that the allegation of misconduct against the arbitrators was not pressed at any stage of this case. On the contrary, it is admitted that the parties accepted the award and, in lieu of the acceptance, affixed their signatures to it. One other fact that may be stated in passing is that, prior to the institution of the present suit, there had taken place at least three partitions: a private family partition through arbitration in Samwat 1985, separation of Dhunda by suit in 1987, and the aforesaid partition by suit and award dated 16-5-1999.

8. The following is a translation of the award: (After quoting the translation the judgment proceeded) :

9. Now, there are two clear grounds on which the present suit should fail : firstly, the properties in suit have already been partitioned, and, secondly, if any of them has not been partitioned, the same should have been brought into the hotchpot by the present plaintiffs in the former suit.

10. Taking up the first ground, the present plaintiffs' case is that the previous partition was a partial one. A partition may be partial in respect of property or of the persons making it. The plaintiffs' case is that it was partial in respect of property in that the aforesaid properties mentioned in the particulars filed by them in the present case were not partitioned by the arbitrators. The best, and in fact the only permissible, way to find if this was so is to look at the awarditself. Delivering judgment on behalf of their Lordships of the Judicial Committee in Palani Ammal v. Muthuvenkatachala, A.I.R. 1925 p. c. 49, it was laid down by Sir John Edge as follows:

'In a suit for partition which proceeds to a decree which was made, the decree for a partition is the evidence to show whether the separation was only a separation of the plaintiff from his coparceners or was a separation of all the members of the joint family from each other.

It appears to be obvious to their Lordships that in a suit for partition no effective decree can be made for a partition unless all the coparceners, whose addresses are known are parties to the suit and that it is the decree alone which can be evidence of what was decreed.'

That was a case wherein partial partition as to parties was alleged, but the principle laid down there would be equally applicable to a case like the present where the previous partition is said to have been partial as regards property.

11. There are two passages in the award, and only two, which are germane to the point under consideration. The first is in para. 8 of the award and runs as follows: 'If any debtor turns out to be joint, the parties can divide it according to their shares or get it divided.'

That paragraph related to the outstandings due to the family in respect of the money-lending business. A perusal of the entire paragraph, as given in the above translation, will show that, except for the stray debtor or so mentioned in the above cited passage, a complete partition of all the outstandings was effected. On the face of it, therefore, it is incredible that the extensive outstandings detailed as items 1 to 6 in the said particulars should have been left unpartitioned. And those extensive outstandings cannot certainly fall within the description of 'any debtor who turns out to be joint' in the above passage.

It is noteworthy that there is reference in this paragraph to bahis relating to Simla business also, which is the first, and the largest, item in the aforesaid particulars filed by the plaintiffs in this suit. The outstandings having been partitioned, an arrangement for convenience sake with regard to possession of books of account was made. Books relating to business in one place were entrusted to one party, those relating to another place to some other party, and so on. It was at the same time provided that if for the realisation of his share of outstandings any party required books in possession of another, the latter will be liable to hand them over to the former. The fact that books relating to Simla business were included in this arrangement shows that the outstandings relating to that business were also the subject of partition.

12. The other passage appears in para. 9 of the award and it is to the following effect :

'But the parties have objection in respect of gold, silver, ornaments and cash, about which they will have the right to obtain redress by instituting a suit in Court against such of the persons whom they consider to be in possession of the same.'

It will be noticed that this passage has been added at the end of the paragraph after having mentioned that gold, silver, ornaments and cash produced by the parties had boon divided. The passage Hounds like a counsel of despair ill-befitting a judgment. Of the five arbitrators, four have been produced as witnesses by the plaintiffs and one, the umpire, by the defendants. In the explanation which they have offered of this passage they are all unanimous. That explanation is that each party accused the other of concealment of gold, silver, ornaments and cash, but none adduced any evidence in support of the accusations. And this makes applicable the second of the above two grounds on which I have said the present suit should fail. It is well established that a suit for partition between coparceners should embrace the entire family property. That being so, for a final and complete decision in the former suit it was incumbent on the present plaintiffs to do as defendants in that suit what they seek to do in the present, viz., bringing the property in suit into the hotchpot. It is noteworthy that it is not the plaintiffs' case that the property in suit was excluded, from the previous partition by mistake, fraud or accident, or that they withdrew from the previous suit with liberty to file a fresh one in respect of the present subject-matter. The matter which has been made a ground of attack in the present suit should have been made a ground of defence in the former suit and will, therefore, be deemed, under Expln. IV to Section 11, Civil P. C. to have been constructively in issue directly and substantially, and to have been decided against the present plaintiffs, in the former suit. The position is too well established to need reference to any precedent, but see the Full Bench decision Sri Gopal v. Pirthi Singh, 20 ALL. 110 (F.B.), following the Privy Council ruling Mahabir Prasad v. Macnaghten, 16 cal. 682, and confirmed on appeal by the Privy Council in Sri Gopal v. Pirthi Singh, 24 ALL. 429.

13. The learned Counsel for the parties advanced elaborate arguments, and referred to the entire evidence produced in the former as well as in the present suit, relating to every single item of the properties now sought to be partitioned. In view of the above findings, it is not necessary to advert to those arguments and evidence. I may, however, add that I am satisfied that none of the said properties was left unpartitioned in the former suit.

14. Before I conclude I must say that, presumably taking their cue from the plaintiffs, and as a counterblast to the lattor's unfounded claim, the defendants also set up a false case of the plaintiffs having concealed considerable cash and ornaments in the former suit. Except that the plaintiffs set the ball rolling by filing this suit, there is not much to choose between the insatiable desire for partition based on false allegations exhibited by both the parties. I would, therefore, leave the parties to bear their own costs.

15. I would, therefore, humbly advise the Hon'ble the Chief Commissioner that the appeal be allowed, the judgment and. decree of the trial Court sot aside, and the suit of the plaintiffs-respondents dismissed, parties bearing their own costs throughout.


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