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PETITIONER: GIAN CHAND KAPUR (DEAD) BY LRS.

       Vs.

RESPONDENT: RABINDRA MOHAN KAPUR & ORS.

DATE OF JUDGMENT03/12/1986

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1987 AIR  240            1987 SCR  (1) 398  1987 SCC  (1)  80        JT 1986   958  1986 SCALE  (2)948

ACT:     Partition   Act,   1893   -  Suit   for   partition   of house--Family  settlement on the basis of an award  grounded upon compromise--No share given to plaintiff in suit--Plain- tiff not entitled to share in property.

HEADNOTE:     Chander  Mohan  made a gift of the house in  dispute  in favour  of  Gyan  Chand, but later on he filed  a  suit  for cancellation  of  the  gift. The suit was  referred  to  the arbitrator  who  made his award, which was accepted  by  the Court and a decree followed. Under the decree Chander  Mohan got  a right of enjoyment during his life time.  Gyan  Chand and  the sons ofMohinder Mohan, another brother  of  Chander Mohan,  together  got one-third share  each.  The  remaining one-third  share went to the daughter of Chander Mohan  with life interest and after her, absolutely to her son.     Later  the  three sons of Mahinder Mohan  filed  a  suit asking for exclusive possession of their one-third share  in the  disputed house. Finally, the High Court held that  they were not entitled to a share in the property.     The widow and son of Chander Mohan filed a suit claiming two-third shares in the property and for partitioning there- of.  The  trial Court dismissed the suit  holding  that  the award was void and the gift operated and since under it,  no share was given to them, they had no right to sue for parti- tion. However, in appeal, the High Court found that they had one-third share and decreed their claim to that extent. Allowing the appeal of Gyan Chand Kapoor (Defendant no. 1),     HELD:  1. The High Court 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  compro- mise. There was no justification to hold that the gift which constituted  the title in respect of the subject  matter  of the  house, were separate from one another;  equally  falla- cious  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. [400E -- F] 399     2.  Admittedly, under the gift or in the compromise  and

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the award no share had been given to the present plaintiffs. In  such circumstances, the plaintiffs could not  claim  any share in the property. [400G]     3. Rama Devi, widow of Chander Mohan, is allowed to live during  her life time in the house in dispute without  title to the property. [40lB -- C]

JUDGMENT: CIVIL APPELLATE JURISDICTION. Civil Appeal No. 558 of 1973     From the Judgment and Order dated 2.5.1972 of the  Delhi High Court in R.F.A. No. 36-D of 1962. A.B. Rohtagi and B.P. Maheshwari for the Appellant. O.P. Verma for the Respondents. The Judgment of the Court was delivered by     RANGANATH  MISRA,  J. This appeal by certificate  is  by defendant No. 1 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  has given a decree for it. Defendant  No.  1  who maintains  that the plaintiffs have no interest in the  suit house has challenged the appellate decree.     Admittedly  the  house in dispute  belonged  to  Chander Mohan.  On 29.6.1937 he made a gift of it in favour of  Gian Chand, son of his brother but on 8.12.1937 filed a suit  for cancellation  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 accepted by the Court on the same day and a decree followed.     Under the decree, Chander Mohan got a right of enjoyment during  his life-time. Gian Chand (Defendant No. 1) and  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 deceased  wife with life interest and after her,  absolutely to her son.     A second round of litigation in respect of the  property started  with  the suit in June 1953 by the  three  sons  of Mohinder  Mohan  asking for exclusive  possession  of  their one-third share in the house and for accounting. After a 400 chequered  career, this litigation received a final seal  by the  judgment of the High Court in R.S.A. No. 61-D of  1958. The  High  Court  held that the three  plaintiffs  were  not entitled to a share in the property.     Soon  after the disposal of the second round of  litiga- tion,  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 there- of  along  with  other ancillary reliefs.  The  trial  Court dismissed the suit by finding: 1. 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, no share was given to the plaintiffs, they had no  right to sue for partition.     The  High Court did not agree with the trial Court  that the  award was bad and the gift operated. It found that  the

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plaintiffs had one-third share and decreed the claim to that extent.  This  appeal  by defendant No. 1  is  against  this reversing decree.     The  High  Court, 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. Admittedly under the gift or in the compromise and the award no  share had been given to the present plaintiffs. In  such circumstances,  the plaintiffs could not claim any share  in the property. Reasoning given by the High Court to carve out one-third  share in favour of the plaintiffs is not  tenable in law nor on facts. It is not appropriate at this stage  to examine the correctness of the judgment of the High Court in the second appeal. By that judgment Mahinder Mohan had  lost title to the property.     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 401 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.     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 trial Judge to  carve  out  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. 402