JAI KRISHAN DASS Vs. HARI KISHAN DASS

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order of the learned Single Judge dated 11-07-1997 in Suit No. 235/1976. The appellant (hereafter referred as "Jai Krishan") was the first defendant in the suit for partition filed by the first respondent, Hari Krishan (hereafter referred to as "the plaintiff" and "Hari Krishan").

(2.) The facts briefly are that the plaintiff and the appellant are brothers. The suit originally impleaded the other brothers i.e. Brij Krishan, Gopal Krishan, Avtar Krishan their father, Balkrishan Das and their mother Ram Kala Devi. Balkrishan Dass (the appellant's father) was one of the five sons of Girdhari Lal (i.e. grandfather of the plaintiff and the appellant). His other brothers uncles of the said two parties were Babu Ram, Banwari Lal, Murari Lal and Devi Charan. The parties' grandfather Lala Girdhari Lal was part of a joint Hindu family. He also had a business known as Panna Lal Girdhari Lal (PLGL). PLGL was a joint family business. The appellant and his two minor sons had filed a suit No. 317/1961 claiming that they were members of joint family firm and were entitled to share in the business and properties. That suit was transferred and registered as Suit No.154/1967 before the High Court. It was heard and dismissed sometime in 1979; the appeal against that judgment was also met with the same fate. The appellant preferred an appeal for special leave to the Supreme Court which too was dismissed on 04.01.1984; the Supreme Court judgment is reported as Jai Krishan & Others Vs. Nirmala Devi & Another, 1984 AIR(SC) 589. The Supreme Court affirmed the finding of this Court that there was a general disruption of the larger joint Hindu family of Girdharilal sometime in 1941-1942.

(3.) In the meanwhile Balkrishan Dass had constituted a firm of which some of his sons were partners. The present plaintiff Hari Krishan filed a suit being 234/1976 seeking dissolution and rendition of accounts. The appellant was not a party to that suit. He claimed to be a necessary party and filed two applications i.e. IA No.2592/1976 and 1364/1981 for being impleaded; they were rejected. By the second suit CS (OS) No. 235/1976 out of which the present appeal has arisen Hari Krishan claimed partition of joint family of Balkrishan Dass, who was its karta. The larger HUF, of which Balkrishan Dass, father of the parties of the present suit was a member, had already stood disrupted in 1941-42. All brothers i.e. the appellant, the plaintiff as well as their brothers were made parties; Balkrishan Dass and the parties' mother Ram Kala Devi were also impleaded as defendants. The parents i.e. Balkrishan Dass and Ram Kala Devi died during the pendency of the suit as did Gopal Krishan Dass, one of the brothers. In the light of the pleadings and after hearing counsel for the parties, the learned Single Judge N.N. Goswamy, J. by an order dated 17.5.1979 declared the share of each of the parties to be 1/8th in respect of the 7 items of the properties mentioned in the suit. The said preliminary decree and order dated 17.5.1979 reads as follows :