RISHI RAM Vs. KAPOORI DEVI

JUDGEMENT

(1.) One Chhoteylal and his firm were proceeded for insolvency and suit property was sold in Court auction to Respdt. 1 Chhoteylal's 3 sons presented objections. Later on petitioner withdrew from it and filed a separate suit. Their objections were that property was ancestral in which Chhoteylal had l/6th share. Petitioner in his suit was denied interim Rishi Ram Vs. Kapoori Devi etc. injunction. Parties agreed to refer their disputes to arbitrators. Latter's award was filed in Insolvency Court. Parties agreed not to object. The 3 sons (including petitioner) paid major amount but defaulted about las. payment with the result that Respdt. 1 became entitled to possession. She applied for it. Petitioner asked for revival of his suit alleging that award was neither filed nor made rule of the court and was not binding on him. During proceedings, for purposes of stay, ADJ allowed the sons to deposit balance. Ultimately order was against petitioner and he approached High Court. After detailing above, judgment proceeds :-]

(2.) With this background of the facts I have heard the parties's counsel and given my utmost consideration to the entire circumstances. There can be no dispute that it were the rights, title and interest of Chhotey Lal and the concern Chhotey Lal Laxman Dass which were put to auction by the official liquidator and purchased by Smt. Kapuri Devi. In case Chhotey Lal was the sole owner of this property as well as that business, Kapuri Devi acquired absolute title over this property as a result of that sale. In that case Chhotey Lal's sons cannot assert any interest in this propesty. However, in case this property was ancestral property in the hands of Chhotey Lal or that it belonged to his joint Hindu family constituting of himself, his sons and his wife, then Kapuri Devi acquired no larger title than what Chhotey Lal had in this property. The same ex-facie would appear to be l/6th share. The Insolvency Judge while adjudging Chhotey Lal as insolvent had recognised that there existed a joint Hindu family between them and the same had disrupted in status and not by metes and bounds. It was also noted that there was ancestral property though the same was not specified and whether it had reference to the property in dispute. Chhotey Lal's sons have throughout been asserting that this property was their ancestral and joint Hindu family property in which they to had share. This case was subject matter of the objections that they had moved before the Insolvency court under Section 4 as well as of the suit No. 338/61 before Mr. Trilochan Singh, Sub-Judge. In none of these proceedings this case was adjudicted by the courts. In the insolvency proceedings the sons were directed to hand over posseesion when they had failed to abide by the term of the interim stay granted viz. deposit of Rs. 25.00 p.m. The suit too did not reach the stage of finality as it was adjourned sine die after the reference of disputes to arbitration and its revival later was declined. The interim stay against delivery of possession had been refused by Mr. Trilochan Singh, Sub-Judge and it had been declined in two earlier suits brough by some of the children of the sons of Chhotey Lal.

(3.) It appears that the claim of Chhotey Lal's sons about the ancestral and joint Hindu family nature of the the property did call for consideration and it was as such that arbitration was directed, both in the appeal pending before the S.S.J. in suit No. 338/61, and the objection petition before the Insolvency Judge. The claim of the sons was not treated as deserving outright rejection but called for adjudication. The arbitrators without expressly giving any finding about the nature of the property or the shares if any which Chhotey Lal's sons had in the same adopted a more equitable approach in allowing the sons to take back the property on refund of the consideration which Kapoori Devi had paid and a further amount of Rs. 1,500.00 as compensation to her. On their doing so the property was to be transferred in favour of Laxman Dass who according to the petitioner was the eldest of them and was representing them. The circumstance that other brothers of Laxman Dass had also been paying instalments in a way reflects that the transfer back to Laxman Dass was meant to be for the benefit of all. Unfortunately Rs. 13,500.00 only could be paid by these brothers within the time prescribed by the award and there was a default in the payment ofRs. 4,000.00; though they had asserted that Rs. 500.00 only was left due. This assertion has, however, been negatived by the courts. In the circumstances, the right of Kapoori Devi to take possession of the property as auction purchaser was upheld. Whether the sons of Chhotey Lal were prevented from depositing Rs. 4000.00 in time at that stage or Rs. 25.00 per month as earlier directed in suit No. 338/61 out of poverty is difficult to say. In case they deliberately did so to harass the auction purchaser, then both the sides have paid a heavy price thereof in the net work of long litigations, 1985. Rajdhani Law Reporter 310 The fact remains that the courts have held that there was a default in the payment of Rs. 4,000.00 in time, and, therefore, Kapoori Devi was entitled to take possession of the property. At the same time, it is also clear that these Rs. 4000.00 were subsequently deposited in terms of the order of Mr. J.D. Jain on or before 6.10.1971 when the sons of Chhotey Lal had filed an appeal against the order of the In solvency Judge Mr. S.R. Goel, that the default having taken place the possession should be delivered to Kapoori Devi. That order was made as an interim measure when stay against the delivery of possession was sought during the pendency of the appeal. Ultimately, however, the appeal was dismissed by Mr. Jaspal Singh The amount of Rs. 13,500.00 so far has remained with Kapoori Devi while Rs. 4,000.00 are lying in the court. Another amount of Rs. 500.00 was deposited on 17.8.1965.