MASTER PULKIT Vs. KAMLESH

JUDGEMENT

(1.) This Suit for partition and rendition of accounts has been filed on behalf of Master Pulkit through his mother and natural guardian, Smt. Neeta, wife of Shri Satish Kumar who has been impleaded as Defendant No.10. In the Plaint it has been stated that late Shri Bodh Raj Bhola, the great grandfather of the Plaintiff, died on 1.6.1995 at Delhi. In paragraph 2 of the Plaint it has been averred that the "deceased left behind in Pakistan lot of housing accommodation and accordingly as per law, as was prevalent then, filed various claims with the Ministry of Rehabilitation and the said Ministry of Rehabilitation accepted the claims of the deceased in full. The claims were utilised for the purchase of property at Kalkaji". It is the case of the Plaintiff that from the sale of the Kalkaji house the suit property, bearing No.8/6, W.E.A., Karol Bagh, New Delhi has been purchased. Learned counsel for Defendant No.3 has pointedly drawn attention to the absence of any statement in the Plaint that the property left behind in Pakistan was an ancestral property in the hands of late Shri Bodh Raj Bhola. Learned counsel for the Plaintiff has been unable to show me any statement in the Plaint to this effect and his submission is that Income-Tax Returns are available. However, it is a cardinal principle of law that evidence can be led only in respect of averments in pleadings. Since there are no pleadings to the effect that the properties in Pakistan were ancestral properties in the hands of late Shri Bodh Raj Bhola, it is impermissible to look at documents which may indicate that those properties were ancestral. On a reading of the Plaint it is manifestly apparent that so far as the properties of late Shri Bodh Raj Bhola were concerned, these were not contemplated by the parties hereto as ancestral. The fact that none of the siblings of late Shri Bodh Raj Bhola have been impleaded in the present Suit is indicative of this fact. Had ancestral properties been left behind in Pakistan, late Shri Bodh Raj Bhola, as also his siblings, would have had an equal right in those properties. I hold that the Estate of Late Shri Bodh Raj Bhola did not comprise any ancestral properties. This is also established by the fact that in the Probate proceedings filed by the Plaintiff's paternal grandfather, this position had not been asserted.

(2.) There has been a previous litigation between the parties. On the demise of late Shri Bodh Raj Bhola a Will was presented for the grant of Probate. In those proceedings the paternal grandfather of the Plaintiff, namely, Shri Jagdish Mitter Bhola, Defendnat No.9, was the Petitioner. The other children of late Shri Bodh Raj Bhola were impleaded as Class-I heirs. In the course of that Petition a compromise was arrived at between the parties, i.e. the different Class-I heirs of late Shri Bodh Raj Bhola. There is a document dated 18.9.1996 available on the record which has been signed by these Class-I heirs. The compromise that was effected in the Probate case took place on 10.9.1996. Significantly, the father of the present Plaintiff was a signatory to that Family Settlement although as a witness. I have compared the signature of Shri Satish Kumar Bhola with his signature on an affidavit filed by him dated 3.10.2000 and am satisfied that the signature on the Family Settlement is that of Shri Satish Kumar Bhola. Learned counsel for the Plaintiff has attempted to assail the genuineness of this Family Settlement by drawing attention to the fact that it was executed one week after the Probate Petition was compromised and was, therefore, not a necessary document. This argument is devoid of merit. It is not in dispute that the grandfather of the Plaintiff, namely, Mr. Jagdish Mitter Bhola, Defendant No.10 in those proceedings ( as mentioned above the Petitioner in Probate Petition) received a share in the Estate of his father, namely, late Shri Bodh Raj Bhola.

(3.) The question of whether the minor Plaintiff could have been represented by the mother, while the father is alive, has not been clarified. No application for appointing the mother as the guardian ad litem has been filed. It is not in dispute that the father, namely, Shri Satish Kumar Bhola, has not received a share from the Estate of late Shri Bodh Raj Bhola. The canons of Hindu Law enunciate that it is the father who is the legal guardian of a minor Hindu. I am mindful of the fact that his signature is available on the family settlement dated 18.9.1996 and perhaps for this reason, he had decided to fight a proxy litigation on behalf of his son through his wife. The Family Settlement has not been mentioned in the Plaint and learned counsel for the Plaintiff states that the minor, as well as his mother, were unaware of it. This position appears to be wholly incredible, especially in view of the fact that the mother has admitted that she is living along with her husband, i.e. the father of Master Pulkit. It is obvious to me that the manner in which the present Plaint has been filed has been carefully contrived in order to mislead the Court. I am also of the view that an application for the appointment of a guardian ad litem has intentionally not been filed to avoid the Court's focus on this very vital aspect of the case.