NATHMAL Vs. MAHESH KUMAR

JUDGEMENT

(1.) Brief facts leading to this petition are that Mahesh Kumar, Ramesh Kumar, Rajesh Kumar and Umesh Kumar, sons of Keshav Deo filed a suit on March 26, 1962, for declaration that the mortgage by conditional sale made by Keshav Deo on 8th November, 1946, does not affect the plaintiff's interest in the properties mentioned in Schedule 'A' and the decree for partition obtained by the defendants Onkar Mal, Banwari Lal and Bhoora Mal on March 29, 1961, does not affect the plaintiffs' right, title, and interest in the said properties. The suit was decreed in favour of the plaintiffs by the learned District Judge, Jhunjhunu by his judgment dated March 31, 1967. Aggrieved against the aforesaid judgment and decree Shri Onkar Mal and Banwari Lal defendants filed an appeal in this Court in, which the above named plaintiffs were impleaded as respondents and Shri Bhoora Mal one of the defendants was also impleaded as respondent No. 5. This court vide its judgment dated 20th February, 1980, allowed the appeal, set aside the judgment and decree passed by the learned District Judge dated 31st March, 1967 and dismissed the suit of the plaintiffs with costs. The plaintiff-respondents Nos. 1 to 4 above named filed a petition under Section 151, Civil P. C. on March 12, 1980, alleging therein that the appellant Banwari Lal died about 3 years prior to the judgment by this Court on February 20, 1980. The deceased Banwari Lal had left two sons and his wife as legal representatives. The appellant? did not take steps to substitute the legal representatives of Banwari Lal with the result, that the appeal automatically abated after the expiry of statutory period of 90 days. It is further alleged that Onkar Mal and Kalu Ram father of Banwari Lal were real brothers and both Onkar Mal and Banwari Lal were residing at Berakad District Vardhman in the State of West Bengal. Onkar Mal had knowledge about the death of Banwari Lal but still he did not take any step for substituting his legal heirs on record within time. The decree has been passed by this Hon'ble Court, in favour of a dead person namely Banwari Lal and the same as such be declared as a nullity. It is also alleged that the learned trial Court had passed a joint decree against Onkar Mal. Banwari Lal and Bhoora Mal to the effect that the properties mentioned in the Schedule at item numbers 1 to 9 were ancestral properties of the plaintiffs and Keshav Deo had no right to alienate that property. The learned trial Court had further held that the transfer-deed dated 8th November, 1946 was null and void and ineffective against the plaintiffs. The learned trial Court further held that the plaintiffs were not bound by the decree passed on 29th March, 1961, and the defendants Nos. 1 to 3 were restrained with a permanent injunction from taking possession on the properties or any part thereof mentioned in Schedule 'A'. After abatement of the appeal against Banwari Lal, the result of the decree passed by this Hon'ble Court on 20th February, 1980, will be passing two conflicting decrees. The death of Banwari Lal was not in the knowledge of the respondents otherwise they would have informed their counsel earlier. They came to know about this fact after due diligence and when they came to know about the result of the appeal and then Ramesh Kumar went to his home town, he was informed about the death of Banwari Lal and in these circumstances have prayed to set aside the judgment and decree passed by this Court on February 20, 1980.

(2.) In the reply to the application filed by Onkar Mal defendant-appellant No. 1, the fact that Banwari Lal had died about three years back is not denied. In the reply filed on April 28, 1980, it Was mentioned that Shri Bhoora Mal defendant No. 2 in the suit was made a pro forma respondent No. 5 in the appeal before the High Court. It was also not denied that Banwari Lal had left behind his wife, since deceased, and two sons and no application was submitted to bring them on record, but it was not necessary to do so It is denied that the appeal automatically abated on the expiry of 90 days after Banwari Lal's death. In Clause (b) of para 7 of the reply a family pedigree has been given according to which it is alleged that Shri Gopal Rai and his three sons Harsukhrai Kaloo Ram and Onkar Mal and Bhoora Mal sons of Harsukhrai and Banwari Lal son of Kaloo Ram, all formed a joint Hindu family of which Shri Gopal Rai was the Karta. After the death of Gopal Rai Harsukhrai and after the death of Harsukhrai, Shri Kalu Ram and after the death of Kalu Ram Shri Onkar Mal appellant No. 1 became the Karta. The agreement dated 5th January 1946, between Keshav Deo Tulsian father of the plaintiff and Kalu Ram, Onkar Mal and Bhoora Mal were also entered into with Shri Kaloo Ram as Karta and Shri Kaloo Ram has signed on it as Karta on behalf of himself and Onkar Mal and Bhoora Mal. Shri Kaloo Ram as Karta had paid Rs. 80,000/-to Shri Keshav Deo as part of the purchase money at the time of the said agreement. As Onkar Mal appellant was already on record and even Bhoora Ma) (his nephew) was also there as a pro forma respondent it was neither necessary nor it was considered necessary to bring on record the legal representatives of Banwari Lal appellant No. 2 as Onkar Mal alone was competent to continue the appeal. It is further alleged that the decree passed by this Hon'ble Court is in favour of Onkar Mal appellant No. 1, who is the Karta of the family and faithfully represents the entire family including the heirs of Banwari Lal. The decree is not a nullity as the petitioners have no right to challenge it. If any person can do so it is only the legal representatives of Banwari Lal, but they are fully satisfied with it and accepted it. It is further alleged that the legal representatives of Banwari Lal i.e. Ratan Lal Agrawal and Rajendra Prasad Agrawal do not challenge the decree in favour of Banwari Lal and instead accept it and in token of it they arc submitting their vakalatnama in favour of Shri P. N. Datt and Shri K.N. Tikku along with this reply.

(3.) The plaintiff-respondents Nos. 1 to 4 then filed a rejoinder on July 7, 1980, that it was not the case of appellant Onkar Mal at any stage that Onkar Mal and Banwari Lal were members of joint Hindu family or the property in suit was purchased by them as members of joint Hindu family. On the contrary in the sale deed dated Nov. 8, 1946, it was stated that property in suit was purchased by Onkar Mal. Bhoora Mal and Kalu Ram father of Banwari Lal. Onkar Mal, Bhoora Mal and Banwari Lal filed a suit in the court of District Judge in 1964 and in that suit also it was not their case that they were members of Joint Hindu family or the property in question was joint Hindu property. The appellants were claiming the property as co-owners and now a new case of alleged joint Hindu family was being made out which was an afterthought and cannot be enquired into at this stage. It is further alleged that after coming into force of Hindu Succession Art if a male Hindu died intestate his property devolved on his legal representatives not as joint tenants but as tenants in common. Thus, after the death of Banwari Lal there was no representation of the interest of Banwari Lal and the decree passed against him became final and it cannot be set aside by this Hon'ble Court. It is for the alleged that Onkar Mal and Banwari Lal were living separately and doing their business separately. Onkar Mal was the owner of coal mines in the name of Bon-Jemihari and Bhoora Mal respondent was the owner of coal mines Lohat Colliery and Pandabeshwar in Barkar District Vardhman. These mines have been nationalised and the compensation had been claimed by the said owners, The appellant Onkar Mal had submitted income-tax returns as individual owner of business etc. and not as member of joint Hindu family. In support of the above allegations certain documents have also been annexed along with the rejoinder.