GIAN CHAND KAPUR (DEAD) BY LRS. versus RABINDRA MOHAN KAPUR & ORS.

RANGANATH MISRA, J. This appeal by certificate is by defendant No. l and is directed against the reversing decree of the High Court in a suit for partition of a house and other related reliefs. The trial Court had dismissed the suit but the High Court has found that the plaintiffs were entitled to one-third share as against ·two-thirds claimed by them and bas given a decree for it. Defendant No. l who maintains that the plaintiffs have no interest in the suit house has challenged the appellate decree.

p. 399, margin D

Admittedly the house in dispute belonged to Chander Mohan. On 29.6.193.7 he made a gift of it in favour of Gian Chand, son of his brother but on 8.12.1937 filed a suit for canoellation of the gift. That suit was referred to the arbitration of the plaintiffs Advocate by an application dated 31.5.1938 and the Arbitrator made his award on 20.6.1938 on the basis of a compromise between the parties which he treated as a family settlement. The award was acoepted by the Court on the same day and a decree followed.

p. 399, margin E

Under the decree, Chander Mohan 5ot a right of enjoyment during his life-time. Gian Chand (Defendant No. l) an<J the sons of Mohinder Mohan, another brother of Chander Mohan together got one-third share·each. The remaining one-third share went to Tarawati, daughter of the donor from the deoeased wife with life interest and after her, absolutely to her son.

p. 399, margin F

A-second round of litigation in respect of the porperty started with the suit in June 1953 by the three sbns of Mohinder Mohan asking for exclusive possession of their one-third share in the house and for accounting. After a chequered career, this litigation received a final seal by the judgment of the High Court iri R.S.A. No. 61-D of 1958. The High Court held thatthethreeplaintiffs were not entitled to a share in the property.

pp. 399–400, margin G

Soon after the disposal of the second round of litigation, Rama Devi and her son Rabindra claiming to be widow and son respectively of Chander · Mohan filed• a suit claiming two-thirds share in the property and for partitioning thereof along with other ancillary reliefs. The trial Court dismissed the suit by finding: · -'--L Rama Devi was wife of Chander Mohan and Rabindra is their son; 2. The judgment of the High Court in the second round of . litigation did not bar the present claim; · 3. The award was void and the gift operated and since under it,

p. 400, margin A

no share was given to the plaintiffs, they had no right to sue for ( partition.

p. 400, margin C

The High Court did not agree with the trial Court that the award was bad and the gift ·operated. It found that the plaintiffs had one-third share and decreed the claim to that extent. This appeal by defendant No. 1 is against this reversing decree.

p. 400, margin D

The High C~urt, in our opinion, was wrong in holding that the plaintiffs had a share in the property. In the very first litigation itself the decree was in the · nature of a family settlement on the basis of an award grounded upon compromise. There is no justification to hold that the gift which constituted the title in respect of the subject-matter thereof, namely, the house, were separate from one another; equally fallacious was the view of the trial Court- that· notwithstanding the compromise, the award and the-decree, the _gift still remained valid as it has not been set aside. A<llnittedly under the gift or in the !'Ompromise and the award no share had been given to the present plaintiffs. In such circumstances, the plaintiffs could(not claim any share in the proiierty. Reasoning given by the High Court to earve out one-third share in favour of the plaintiffs is not tenable in law nor on facts. It is not appropriate at this stage io examine the correctness of the judgment of the High Court .in the second appeal By tbiit judgment Mahinder Mohan had lost title to the property.

p. 400, margin E

An affidavit was filed in course of the hearing of the appeal on behalf of the plaintiffs-respondents to suggest that Vijay Kumar was not the son of Tarawati. The affidavit which seeks to re-open a question of fact cannot be accepted at this stage. The plaintiffs have no title and would, therefore, not be entitled to one-third share in the house as decreed by the High Court. The appeal is allowed and the plaintiffs' suit has to be dismissed. We set aside the judgment of the High Court and restore that of the Trial Court with a direction that parties shall bear their own costs throughout.

pp. 400–401, margin G

Rama Devi has been found to be the widow of Chander Mohan and Ravindra Mohan is the son. The evidence shows that both of them had been living in this house. We think-it appropriate that Rama Devi should be allowed to live during her life-time in this house without title to the property. If the residential portion for Rama Devi is not amicably carved out within six months from to-day, it will be open to her to apply to the learned trialJudgetocarveout a reasonable portion of the house for her living during her life-time without right of alienation in any manner. A.P.J. Appeal allowed.

p. 401, margin B