JIVA RAM Vs. JAWAHAR LAL

JUDGEMENT

(1.) Kishan Chand, who died in 1941, had three sons Jiva Ram (Defendant No. 1), Devi Dass, Nanak Chand and two daughters Parkash Wanti and Pritam Devi. Nanak Chand had predeceased him, having died issueless in 1937. Devi Dass died in June, 1944 leaving behind him his widow Gomti Devi and sons Badia Dass (Defendant No. 2) and Shambhu Dass (Defendant No. 3). Jawahar Lal and Suraj Parkash, the two sons of Badri Dass, instituted the suit out of which this appeal arises, for a declaration that the properties mentioned in the plaint 'A' Schedule and the business known as M/s. Kishan Chand Nanak Chand, Lal Bazar, Jullundur City were Joint Family properties and joint family business. The plaintiffs, who were minors, brought the suit represented by their mother Shakuntala Rani as their next friend. It was alleged in the plaint that Jiva Ram was the Karta of the family, that he was setting up an exclusive title in himself to the properties and the business and that he was misappropriating the income of the family. As a cloud was thrown on the rights of the plaintiffs and the other coparceners, the plaintiffs claimed they were seeking a declaration that the properties and business belonged to the Joint Family. No explanation was offered in the plaint as to why Badri Dass and Shambhu Dass, Defendant Nos. 2 and 3 were keeping quiet and why it became necessary for the plaintiffs to sue during the lifetime of their father Badri Dass. As will be apparent when more facts are stated, the suit was really aimed at circumventing the registered deed of partition executed by both Badri Dass and Shambhu Dass, though no reference was made to it in the plaint.

(2.) The suit was contested by the first defendant. He pleaded that he, Badri Dass and Shambhu Dass had effected a partition by means of a registered partition deed dated 9th November, 1960 and that the suit was, therefore, unsustainable. He pleaded that the bare suit for declaration was not maintainable. He pleaded that properties Nos. 6 and 7 in plaint 'A' Schedule belonged to Joginder Pal and Mehnga Ram. He further pleaded that the properties Nos. 2, 6, 4 and 5 were his exclusive properties, purchased by him with his own funds and that property No. 1 alone was ancestral property and that it had been divided under the registered partition deed.

(3.) The plaintiffs filed a replication. Even in the replication they did not admit the existence of the registered partition deed dated 9th November, 1950. They stated that if any alleged registered partition deed was proved, they were not bound by the partition as the alleged partition was unfair and prejudicial to their interest. Not a word was said offering any explanation regarding the circumstances under which Badri Dass and Shambhu Dass came to execute the registered deed of partition.