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PETITIONER: J.   S. BAJAJ & ORS.

       Vs.

RESPONDENT: ARJANDAS DAYARAM VACHHANI & ORS.

DATE OF JUDGMENT: 21/01/1970

BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. BHARGAVA, VISHISHTHA

CITATION:  1970 AIR 1226            1970 SCR  (3) 440  1970 SCC  (1) 382

ACT: The  Displaced  Persons  (Compensation  and  Rehabilitation) Rules. r. 19(2) and (3)-Scope of.

HEADNOTE: Rule  19(2)  of  the  Displaced  Persons  (Compensation  and Rehabilitation)   Rules   provides   for   the   method   of compensation to joint families which have migrated to  India as  a result of the partition of the country in 1947.   Rule 19(3)(b)  provides that for the purpose of  calculating  the number  of  members of a joint family.  Under  r.  19(2),  a person  who  was  a lineal descendant in the  main  line  of another  living  member  of the  family  entitled  to  claim partition shall be excluded. A  joint  family  consisting of a father and  his  sons  had migrated to India from Sind.  The father made an application for  the verification of claim in respect of the  properties left by the family in Sind and the claim was verified.   One of  the  sons claimed that the father and  sons  -should  be treated as tenants-in-common.  The authorities under the Act held that the parties constituted a joint Hindu family  ’and that  in  view  of  the r. 19 (3)  (b),  r.  19(2)  was  not applicable.   The High Court quashed the order holding  that the living member of the family whose lineal descendants are to  be excluded under r, 19(3) (b), must be a  person  other than  their father, on the assumption that a person  against whom  partition  can be claimed by the father must  be  some member of the family other than his lineal descendants. In appeal to this Court, HELD  :  The  special  provision embodied  in  the  rule  is intended to treat a joint Hindu family consisting only of  a father  and his sons as one unit for the purpose of  payment of  compensation  for  the joint  family  property  left  in Pakistan.  The rule is rational and logical and its_language is  not susceptible of the meaning given to it by  the  High Court, because under Hindu law a father and each of his sons are entitled to claim partition against each other. [444  A- B, C-F]

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JUDGMENT: CIVIL  APPELLATE JURISDICTION:    Civil Appeal No.  1178  of 1966. Appeal  by special leave from the judgment and  order  dated June 15, 16, 1965 of the Bombay High Court in Special  Civil Application No. 2061 of 1963. V.   A. Seyid Muhammad and S. P. Nayar, for the appellant. N.   N. Keswani for the respondents. The Judgment of the Court was delivered by DUA.   J. This appeal by special leave is  directed  against the  decision of a Division Bench of the Bombay  High  Court allowing 441 a  petition under Arts. 226 and 227 of the  Constitution  by Arjandas  Dayaram  Vachhani  challenging the  order  of  the Deputy Chief Settlement Commissioner (with delegated  powers of  Chief  Settlement  Commissioner)  under  the   Displaced Persons  (Compensation and Rehabilitation) Act, 1954 (44  of 1954), hereafter referred to as the Act disallowing the writ petitioner’s  revision  from  the order  of  the  Settlement Officer  (with delegated powers of Settlement  Commissioner) which  had  affirmed on appeal the order  of  the  Assistant Settlement Officer.  The writ petitioner’s case was held  to fall within r. 19(3) of the Displaced Persons (C & R) Rules, hereafter  called the Rules, made by the Central  Government under  s.  40  of the Act.  The  question  which  falls  for decision  is a very short one and it relates to the  meaning and effect of r. 19(3). The facts are not in dispute.  Kishanchand Dayaram  Vachhani and  his  four sons Arjandas Dayaram  Vachhani,  Dayaram  A. Vachhani,  Ramchand Dayaram Vachhani and  Kanayalal  Dayaram Vachhani constituted a joint Hindu family when, as a  result of partition of the country in 1947, they migrated from Sind (now   in  Pakistan)  to  India.   After   their   migration Kishanchand   Dayaram   Vachhani,  the   father,   made   an application  for  vertification of claim in respect  of  the properties  left  by the joint Hindu family in  Sind.   This claim  was  duly  verified.  It is  unnecessary  to  make  a detailed  reference to the history of the case.  Suffice  it to  say  that on October 28, 1961  ’Shri  Purshottam  Sarup, Deputy Chief Settlement Commissioner (with delegated  powers of    Chief   Settlement    Commissioner)    (Rehabilitation Department) allowed the appeal preferred by Arjandas Dayaram Vachhani  from the order of Shri H. K.  Chaudhary,  Regional Settlement  Commissioner,  Bombay, dated May  14,  1961  and after  setting aside the impugned order, directed  that  the property. in question be treated as joint family property in which  the  parties would be entitled  to  apportionment  as members of joint Hindu family in accordance with the  Rules. Pursuant  to  this  direction Shri  K.  S.  Bedi,  Assistant Settlement  Officer, Bombay, on June 12, 1963 directed  that the  case be re-processed.  Shri Arjandas  Dayaram  Vachhani appealed  from  this order to the Settlement  Officer  (with delegated  powers of the Regional  Settlement  Commissioner) but  without  success.   That  officer  recorded  a   fairly exhaustive order dated October 21, 1963 in which the  entire history  of the case was noticed.  A revision was  taken  to the  Deputy Chief Settlement Commissioner,  Shri  Purshottam Sarup   (with   delegated  powers   of   -Chief   Settlement Commissioner).  That officer also went into the  controversy at  some  length and by his order’ dated February  13,  1964 disallowed Shri Arjandas Dayaram Vachhani’s claim both under r.  20 and r. 19(2). of the Rules.  It was pointed out  that in his (Shri Purshottam Sarup’s) earlier order it had

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442 been  clearly  stated that the parties constituted  a  joint Hindu family and were entitled to apportionment.  The father and the sons could not be treated as separate and that their claim as tenants in common or as co-sharers was contrary  to his  earlier decision which had remained  unchallenged.   In view of sub-r. (3) of r. 19, r.    19(2)      was       held inapplicable. On an application under Arts. 226 and 227 of the Constitu- tion  the  High Court disagreed with the view of  the  Chief Settlement Commissioner and held r. 19(3) to be inapplicable when the joint Hindu family consists only of father and  his sons.    On  this  view  the  order  of   the   departmental authorities  was  set aside.  The short question  which  now falls  for our determination in this appeal is  whether  the sons  of Kishanchand Dayaram Vachhani are entitled to  claim the  benefit of r. 19(2) which has been granted by the  High Court  on their writ petition in disagreement with the  view of the departmental authorities which excluded the claim  of the sons under r. 19(3).  Rule 19 may here be re-ad "Special  provision  for payment of  compensation  to  joint families : (1)  Where a claim relates to properties left by the members of  an  undivided Hindu family in West  Pakistan  (hereafter referred  to  as  the joint family)  compensation  shall  be computed in the manner hereinafter provided in this rule. (2)  Where on the 26th September, 1955 hereinafter  referred to ’as the relevant date the joint family consisted of (a)  two  or three members entitled to claim partition,  the compensation  payable  to such family shall be  computed  by dividing  the  verified  claim into  two  equal  shares  and calculating the compensation separately on each such share, (b)  four  or more members entitled to claim partition,  the compensation  payable  to such family shall be  computed  by dividing  the  verified claim into three  equal  shares  and calculating ’the compensation separately on each such share. (3)  For  the  purpose  of calculating  the  number  of  the members  of a joint family under sub-rule (2), a person  who on the relevant date:-- (a)  was less than 18 years of age, 443 (b)  was  a lineal descendant in the main line  of  another’ living  member  of  joint Hindu  family  entitled  to  claim partition shall be excluded : Provided  that  where a member of a joint  family  has  died during  the period commencing on the 14th August,  1947  and ending  on the relevant date leaving behind on the  relevant date all or -any of the following heirs namely: (a)  a widow or widows, (b)  a  son or sons (whatever the age of such son  or  sons) but  no  lineal ascendant in the main line,  then  all  such heirs  shall,  notwithstanding anything  contained  in  this rule, be reckoned as one member of the joint Hindu family. Explanation  :-For  the purpose of this rule,  the  question whether  a family is joint or separate shall  be  determined with  reference to the status of the family on the 14th  day of August, 1947 and every member of a joint family shall  be deemed  to  be joint notwithstanding the fact  that  he  had separated from the family after that date." According  to the High Court the other living member of  the joint  Hindu  family  whose lineal  descendants  are  to  be excluded  under sub-r. (3) (b) must be a person  other  than their  own father.  This view, in our opinion, is’  contrary to  the plain words used in this sub-rule.  The  High  Court expressed its opinion in these words

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"It is clear that this condition is intended to apply to  a case where a joint family consists of more than two  persons where  each -one of them is entitled to claim partition  and the members sought to be excluded are lineal descendants  of one of such members.  It is only in such cases that it could be  said that they were lineal descendants of -a member  who was’  entitled to claim partition against another.   In  the present case the father and each of the sons is entitled  to claim   partition  against  each  other.   If   the   lineal descendants  are  to  be excluded even in a  case  like  the present it only means that all the descendants of the father must  be  excluded  even though there  is  no  other  member against  whom  the  father can seek  to  enforce  partition. Having  regard  to the words used  the  only  interpretation which can be placed on clause (b) of sub-rule (3) of r.  19, is the one adopted by us." 444 The error into which the -High Court seems to have fallen is that it has assumed that a person against whom partition can be  claimed  by  the  father’  of  the  lienal   descendants constituting  the joint Hindu family must be some member  of that  family other than his lienal descendants and  that  it excludes  his right to claim partition when -the only  other members of the joint family are his own lineal  descendants. Far  this  assumption there does not seem to us to  be  any. justification either in the language or in the scheme of the Act  and  the  rules  or  in  any  other  provision  of  law applicable  to  the  parties before  us  and  governing  the present controversy. According to the general provisions of Hindu law the  father in a joint Hindu family has the power to partition the joint family  property  and indeed in the present  case  the  High Court  has accepted the legal position that the  father  and -each  of his sons are entitled to claim  partition  against each  other.  It is only on the language of r. 19(3) and  as the   judgment  under  appeal  suggests,  on  that   Court’s disinclination  to  accept as proper, the exclusion  of  the sons when the, joint family consists only of the father  and his  sons  that the High Court-construed r.  19(3)  in  the, manner stated above.  We are unable to find any warrant  for this  view.   The plain reading of r. 19(3) is  against  it. The  language is not susceptible of the meaning  that  there should be in existence some member of the joint family other than the sons, against whom the father should be entitled to claim partition.  The words of the sub-rule being plain  and unambiguous they have, in our view, to be construed in their natural  and  ordinary  sense.  No cogent  reason  has  been suggested   for   departing  from  the   rule   of   literal construction  in this case.  The consequence  flowing  from. this  construction is quite intelligible and seems to us  to be rational and logical.  The special provision embodied  in r. 19 for paying compensation to joint Hindu families is, in our view, intended to treat a joint Hindu family  consisting only  of a father and his sons as one, unit for the  purpose of  payment  of compensation for the joint  family  property left  in Pakistan.  Such a joint -family is not intended  to be  broken  up by the statutory scheme of the  Act  and  the Rules.   Sub-rule  (3)  (b) of r. 19  was,  in  our  opinion correctly construed by the Chief Settlement Commissioner and the  High  Court  was wrong in disagreeing with  it  and  in allowing the writ petition.  The appeal accordingly succeeds and is allowed with costs. V.P.S.                                                Appeal allowed. 445

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