Dismissed

Pyarey Lal v. Vidhya Bhushan

Rajasthan HC10 Aug 2020CFA/55/1979

Case brief

AI extract

What is this about?

The court held that the civil first appeal did not abate upon the death of one appellant and disposed of the application in that regard. The court dismissed the appeal, upholding the trial Court's decree that partition had occurred and no joint Hindu family business or undivided property remained to be divided.

What did the court decide?

Application under Order 22 Rule 9 CPC disposed off; Civil First Appeal dismissed.

Pyarey Lal Vs Vidhya Bhushan — Partition | Rajasthan HC (2020)

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(1 of 9)

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[CFA-55/1979]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 55/1979

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Shri Pyare Lal, Son of Shri Bhajan Lal Agarwal Vaishya, resident of Paltu, Tehsil Nagar, District Bharatpur (deceased), through his legal representatives:-

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Suresh Chand, Son of late Shri Pyare Lal,

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Om Prakash, Son of late Shri Pyare Lal,

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Jai Prakash, Son of late Shri Pyare Lal,

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Smt. Vimlesh Kumari, Daughter of late Shri Pyare Lal,

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all residents of Kherli, Tehsil Laxmangarh, District Alwar (Raj.)

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----Plantiff-Appellants

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Versus

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Shri Vidhya Bhushan, Son of Shri Shyam Lal Vaishya, deceased through his legal representatives:-

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1/1. Smt. Gayatri Devi, widow of Shri Vidhya Bhushan,

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1/2. Bhupenmdra, son of Shri Vidhya Bhushan,

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residents of village Paltu, at present Life Insurance Corporation of India, Zonal Office, Aasaf Ali Road, New Delhi.

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Shri Anand Bhushan, son of Shri Shyam Lal Vaishya, deceased through his legal representatives:-

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2/1. Rajesh Bhushan,

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2/2. Dev Bhushan,

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both sons of late Anand Bhushan, resident of 18, Film Colony, Jhotwara, Jaipur (Raj.)

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Chandra Bhushan Gupta, son of Shri Shyam Lal, Resident of village Paltu, at present resident of 17, Aasam Rifles C/o 65 APO, New Delhi.

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Smt. Rama Bai, daughter of Shri Shyam Lal, wife of Shri Kishan Gopal, C/o Bala Buxji, Record Principal, Malakhera Darwaja, Alwar (Raj.)

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Smt. Shakuntla, daughter of Shri Shyam Lal, wife of Subodh Chandra, resident of C/o Bhushan Gupta, Scheme Jaipur Chand Vilas, D-29-A, C-Scheme, Jaipur.

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Shri Ramji Lal, son of Shri Gangadhar Vaishya, deceased through his legal representatives:-

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6/1. Smt. Barfi Devi, widow of Ramji Lal, resident of Nagar, District Bharatpur (died) deleted vide order dated: 17.9.2000. 6/2. Laxmi Kant, son of Ramji Lal, resident of Nagar, District Bharatpur.

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6/3. Pushpa Devi, daughter of Ramji Lal, wife of Vishva Nath,

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(2 of 9)

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[CFA-55/1979]

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resident of 166, Chhatrapati Nagar, Vijashyan Road, Indore (M.P.)

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6/4. Leelawati, daughter of Ramji Lal, wife of Jamuna Prasad Agarwal, resident of Kumer, near Animal Husbandry, District Bharatpur.

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6/5. Indrawati, daughter of Ramji Lal, wife of Naresh Chand Gupta, resident of House No.1084, Gangapole, Rawita Beer Haveli, Jaipur.

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6/6. Chandra Mohan, son of Rajendra, resident of Nagar, District Bharatpur.

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6/7. Brij Mohan, son of Rajendra, resident of Nagar, District Bharatpur.

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6/8. Vinod, son of Khem Chand, resident of Nagar, District Bharatpur.

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6/9. Smt. Kusum @ Sushma, wife of Rajendra Prasad, resident of Nagar, Tehsil Nagar, District Bharatpur.

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6/10. Smt. Vimla Devi, wife of Khem Chand, resident of Nagar, District Bharatpur.

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Shri Chuttan Lal, son of Shri Gangadhar Vaishya, deceased, through his legal representatives:-

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7/1. Ravi, son of Rameshwar, since deceased through his legal representatives:-

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7/1/1. Neelam Garg, widow of late Ravi,

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7/1/2. Mayank Garg, son of late Ravi,

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both residents of Plot No.179, Jawahar Nagar, Bharatpur (Raj.)

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7/2. Bobby, son of Rameshwar,

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7/3. Jolly, son of Rameshwar,

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7/4. Sanu, son of Rameshwar, died deleted vide order dated:

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17.9.2004

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7/5. Alka, daughter of Rameshwar,

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(respondents No. 7/1/1, 7/1/12, 7/2, 7/3, and 7/5 are grand sons and daughters of late Chhuttan Lal),

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7/6. Dinesh, son of Chhuttan Lal,

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7/7. Yogesh, son of Chhuttan Lal,

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7/8. Shanti, daughter of Chhuttan Lal, died, deleted.

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7/9. Sushila, daughter of Chhuttan Lal,

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7/10. Satyawati, daughter of Chhuttan Lal,

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7/11. Budhi, son of Chhuttan Lal,

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all residents of village Posat Paltu, Tehsil Nagar, District Bharatpur.

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Shri Prabhu Dayal, son of Shri Bhajan Lal, resident of village Pathera Nagar, District Bharatpur.

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----Defendant-Respondents

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(3 of 9)

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[CFA-55/1979]

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For Appellant(s) : Mr. Tripurari Sharma with Mr. Harikishan Sharma For Respondent(s) : Mr. Parag Rastogi Mr. Mohit Gupta

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

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Order

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10/08/2020

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This Civil First Appeal has been preferred against the judgment and the decree dated 17.02.1979 passed by the learned Court of Additional District Judge Bharatpur whereby, the Civil suit No.43/75 filed by the appellant-plaintiff Pyare Lal for partition and possession, has been dismissed.

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Learned counsel for the respondent has filed an application under Order 22 Rule 9 read with Section 151 of C.P.C. dated 3.3.2020 stating therein that the appellant No.1/1 Shri Suresh Chand has expired in the month of May, 2017 and since no application has been filed for taking his legal heirs on record, the first appeal stands abated.

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Opposing the application, learned counsel for the appellants contended that the suit being for partition, the appeal will not abate even if one of the co-parceners has expired.

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Taking into consideration the nature of the controversy involved in the matter, the contention advanced by the learned counsel for the appellants as well as the fact that there is adequate representation of the deceased appellant/plaintiff on record, it is held that the appeal does not abate and the application stands disposed off accordingly.

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[CFA-55/1979]

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The facts in brief are that the predecessor of the appellants namely Late Pyare Lal filed a civil suit against the respondentsdefendants for partition and possession of one and half share of the properties mentioned in Schedule 'd' and for profits of joint family business in the name of M/s. Gangadhar Bhajanlal. It was averred in the plaint that the properties described in the Schedule 'd' were undivided joint hindu family properties. It was further contended that the business of the firm M/s. Gangadhar Bhajanlal belongs to joint family business and the plaintiff was entitled for profit in it as per his share.

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In the written statement filed by the respondent Nos.1 to 3/ defendants No.1 to 3, they denied the averments made in the plaint. It was contended that partition between the co-shareres has already taken place after about five years of the demise of Ram Narain i.e. grandfather of the parties in the year 1920 and thereafter, no undivided hindu family business existed between the parties. It was further submitted that no firm in the name of M/s. Gangadhar Bhajanlal exists and they were carrying out business of their own in the name and style of M/s. Gangadhar Shyamlal. The respondent No.4/defendant No.4, in his written statement, admitted the averments made in the plaint.

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On the basis of pleadings of the parties, fifteen issues were framed including relief. Oral as well as documentary evidence were filed on behalf of both the parties.

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The learned trial Court has, vide its impugned judgment and decree dated 17.02.1979, dismissed the suit filed by the appellant-plaintiff mainly on the premise that the properties in question did not belong to joint hindu family and, as a matter of fact, partition between the then co-parceners has already been

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(5 of 9)

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[CFA-55/1979]

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effected in the year 1920 after about five years of the demise of Ram Narain.

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Assailing the findings recorded by the learned trial Court, it is contended by the learned counsel for the appellant that the findings are perverse and against the pre-ponderence of the probability in their favour. He contended that the plaintiff was able to establish from his oral as well as documentary evidence that the properties in question belonged to joint hindu family, no partition as alleged by the defendants No.1 to 3 in their written statement ever took place and the plaintiff was entitled for the decree of partition, possession as well as profits in joint family business. He, therefore contends that the impugned judgment and decree passed by the learned trial Court be set aside and suit filed by appellant be decreed.

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Learned counsels appearing for the contesting respondents submitted that the findings of the learned trial Court are based on cogent material on record. They submitted that the plaintiff failed to establish that the properties in question belonged to joint hindu family and he was entitled for partition of the same. They further contended that the learned trial Court has rightly, on the basis of evidence on record, recorded a categorical finding that partition of the properties in question has already taken place between the coparceners after the death of Ram Narain. They, therefore, contended that the first appeal preferred by the appellants be dismissed.

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Heard the learned counsels for the parties and perused the material on record.

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A perusal of Exhibit A-10, the letter dated 30.3.1958 reveals that the plaintiff has admitted therein that partition of the

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(6 of 9)

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[CFA-55/1979]

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ancestral properties has already been effected amongst his brothers. The explanation furnished by the plantiff as to execution of this document for the purpose of avoiding income tax liability, has rightly been rejected by the learned trial Court on the strength of Exhibit A-38, the earlier Kiraynama as well as will dated 3.5.1957. The Exhibits 55 to 59 relied upon by the plaintiff to show the firm M/s. Gangadhar Bhajanlal to be firm of Hindu Undivided Family, cannot be relied upon as the same have not been proved in accordance with law. A perusal of the findings recorded by the learned trial Court in this regard vide para 40 reveals that after examining these documents in detail, it has been held that these documents could not be proved by the plaintiff in accordance with law and hence, no inference could be drawn in his favour relying on these documents. The learned counsel for the appellant failed to point out in perversity in the findings in this regard.

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This Court has examined the statement of Bhajanlal father of the plaintiff dated 1.6.1939 (Exhibit A-1) given in civil suit under the title Gangadhar Vs. Gulab Chand; wherein, he has admitted partition having already taken place between the parties. The explanation furnished by the plaintiff as to the admission by his father in his statement dated 1.6.1939, has not been found to be plausible by the learned trial Court. I have no reason to disagree with the aforesaid finding.

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In considered opinion of this Court, the learned trial Court has rightly decided issue No.1 in favour of the defendants relying upon Exhibit A-44, the statement dated 06.12.1943 of Mr. Chiranji Lal, the grandson of Ram Narain, made before the ‘Nizul’ department, seeking correction in the patta issued in the name of

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[CFA-55/1979]

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Mool Chand Gangadhar with regard to shops and godown situated in Kherli wherein, Chiranji Lal has stated that there was no share of Pyarelal Prabhudayal in the property in question and all were residing separately.

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The objection by the learned counsel for the plaintiff as to its admissibility, as he was not afforded any opportunity to crossexamine ChiranjiLal qua his statement dated 06.12.01943, has rightly been rejected by the learned trial Court inasmuch as the statement was made much before filing of the present suit and this statement stood corroborated from the documentary evidence also.

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In so far business of firm M/s. Gangadhar Bhajanlal being firm of Hindu Undivided Family is concerned, this Court finds that as per ledger books available on record, the account of M/s. Gangadhar Bhajanlal continued upto; Shak Samvat 2014, but from very next year i.e. Samvat 2015, the account was divided separately. The explanation furnished by the plaintiff that it was done in order to avoid income tax liability, is not found to be satisfactory. Hence, this Court has no hesitation in holding that no business in the name of M/s. Gangadhar Bhajanlal existed when the suit seeking profits of joint family business was filed.

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This Court finds that the defendants have placed on record documents such as Exhibits A-50, A-51 and A-52 pertaining to revenue entries showing Bhajanlal to be Kashtakar ‘Gair Morusi’ in the land situated in village Partu as well as the documents to show that from Samvat 1993 to 2012 and Samvat 2017 to 2022, Bhajanlal was paying revenue tax for the land situated in village Pathora. Exhibits A-85 to A-104 pertain to payments of revenue tax for the land situated in village Partu having entries in the

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[CFA-55/1979]

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name of Gangadhar and after his death, his sons. The aforesaid documents has unequivocally established that Bhajanlal and his family were residing at village Pathora having their separate houses and livestock; whereas, Gangadhar and his family was residing in village Partu with houses and livestock there.

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The learned trial Court was conscious of the fact that merely having residence at two separate places with ownership of the land/movables in the name of one of the members of Joint Hindu Family is not conclusive evidence as to Joint Hindu Family come to an end; but, after appreciating the aforesaid in the light of other documentary and oral evidences, a categorical finding has been recorded that no business in the name of M/s. Gangadhar Bhajanlal has existed as Joint Hindu Family business in village Partu or Kherli.

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This Court is satisfied that the learned trial Court has committed no error in deciding the issue No.2 be in favour of the defendants. In this regard, after appreciating the oral as well as documentary evidences on record, the learned trial Court has reached the conclusion that the property in question was not outcome of the profits of firm Chiranjilal Shyamlal. On the basis of income tax return for the year 1950-51 (Mark B), the ledger book; Exhibit-34/1 as well as other documentary evidences in the shape of Exhibit A-43 to Exhibit A-48, the patta of the property, the applications and statement of Shri Gangadhar, the learned trial Court has rightly concluded that the property in question was purchased by Gangadhar and Moolchand and not from the proceeds of Firm M/s. Chiranjilal Shyamlal.

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(9 of 9)

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[CFA-55/1979]

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Learned counsel for the appellant has failed to point out any illegality or perversity in the findings recorded by the learned trial Court vide impugned judgment and decree dated 17.2.1979 based on material on record.

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There is no force in this Civil First Appeal which is dismissed hereby.

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(MAHENDAR KUMAR GOYAL),J

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AARZOO ARORA /1

Pyarey Lal v. Vidhya Bhushan

Case brief

What is this about?

What did the court decide?

Pyarey Lal v. Vidhya Bhushan

Case brief

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