MAJOR PRAN NARTH KAUSHAK VS RAJINDER NATH

KAUSHAK (AIR 1986 Del 121)

BACKDROP OF THE CASE

When one person tries to overreach and deprive others of their share of property, the action often
backfires, and he ends up being the biggest loser. That is sometimes referred to as the
inescapable run of 'KARMA.' In its true sense, the property has a specific and more expansive
meaning. It does not only include cash and other tangible items, but it also includes intangible
rights that are considered a source of income. The share that someone has in lands and wealth
due to the omission of others, and it is usually to enjoy and lose certain things as supremely as he
wants to be provided he does not use them in a way that is prohibited by law. When things are
fully ours, or when everyone else is forbidden from associating with them or bothering those
who are close to them, no one except the owner, who meets this criterion, may claim to use them
or to prevent him from disposing of them as he pleases. The reason for this is that the property is
regarded as a right granted to things. Not because it was a right to use those things, but because it
was a right to use those things to spread them by changing or giving them to someone else
without thinking about it, or even throwing them away.

Partition, according to Hindu law, is the division of a joint Hindu family's property in order to
confer separate status on the undivided coparceners. Each coparcener owns an equal share of the
Joint Hindu Family's property, and each retains an inherent title to the land. If a Hindu joint
family decides to split up, the family's joint status is dissolved. The existence of joint family
property must be proven by a plaintiff seeking partition. There is no coparcenery between the
father and his lawful male descendants in the Dayabhaga school, hence sons, grandsons, or great-
grandsons have no right to partition. Son, son's son, and son's son's son, on the other hand, have a
right to partition under the Mitakshara school.
FACTS OF THE CASE

 In 1954, Pt. Som Dutt Kaushik, a retired Under-Secretary in the Government of India, obtained
a perpetual lease of the plot bearing No. 215 Jor Bagh, New Delhi. Soon after that, he built a
double-story house. The entire family, which consisted of Pt. Som Dutt, his three sons, and one
daughter, moved in. Som Dutt passed away in April 1962. In March 1963, an award was made as
a result of an arbitration between Som Dutt's four children. According to the terms of the
agreement, each of the three brothers received an equal share of the property, and the sister
purported to relinquish her claim to the same.

The current suit was filed in March 1978 by one of the sons, Maj. Pran Nath Kaushik, for
partition of this property, and the defendants impleaded were his two brothers. During the trial, it
was revealed that Rajinder Nath Kaushik (defendant No. 1), the eldest of the three brothers, had
actual possession of the property. The other two brothers had previously been assigned outside of
Delhi. Rajinder Nath initially occupied the ground floor, but later obtained possession of the first
floor as well, which the Lever Brothers, who were tenants at the time, had vacated in 1976.
Rajinder Nath introduced his wife's brother L.N. Misra as a caretaker in this segment.

Meanwhile, Rajinder Nath was posted outside of India. However, he had kept his belongings on
the ground floor. Meanwhile, the plaintiff had retired from the army and had come to Delhi with
the intention of occupying the first floor. L.N. Misra forbade him from doing so. Rajinder Nath
preferred his wife's brother to his own, despite continuing to show all platitudes towards him in
letters written to him.
ISSUES RAISED

Whether the property of som kaushik belongs to ancestors property and of joint Hindu family?

Whether the sons of Rajinder nath has acquired interest in same by the birth as a result of sale in
favour of plaintiff and defendant 1?

ARGUMENTS

Mr. Panjwani, on behalf of the aggrieved person, argued that the award did not specifically
describe each of the three brothers' 1/3rd share, but instead simply stated that their sister had no
interest in the land, while also declaring the three brothers absolute owners of the property.
Following that, their partnership was as co-owners rather than co-parceners. Coparcenery or a
shared Hindu family are incompatible with absolute ownership.

Mr. Panjwani then referred to the provisions of Section 6 of the Hindu Succession Act, arguing
that they do not imply a partition between members of a joint Hindu family when one male
member dies. What happens is that the deceased's share is treated as separated from the rest of
the joint family property at that time. A partition is deemed to have occurred in such a share.
However, the severance of the joint Hindu family in terms of status in the present case had
occurred at the time of the award, and thus when the pleadings in the suit were filed. This is in
addition to the observation made above about the presumption of Pt. Som Dutt Kaushik's
separate property under the Hindu Gains of Learning Act.

The two sons of Rajinder Nath, Rajiv and Sanjay, then filed suit, claiming that because the
property was ancestral and belonged to the joint Hindu family, they had acquired an interest in it
by birth and thus their rights could not be eliminated as a result of the plaintiff's sale. It was
revealed that his grandpa, Som Dutt, received agricultural estates and properties in Ambala
District from his forefathers. Mathra Dass was the grandfather, and his agricultural land was
transferred in the name of his son Harnam Dass after his death in 1906.
On the death of Harnam Dass in the year 1912, a mutation was made in Som Dutt's favour. It
was also revealed that Som Dutt sold some land and property in Ambala in 1950 before
purchasing a home in Karol Bagh, Delhi, in 1952. This was also sold in 1953, and it is claimed
that the funds were used to purchase a plot in Jor Bagh and then build the property.

In support, reliance has been placed on a decision of the Bombay High Court in the
case Nusserwanji E. Poonegar v. Mrs. Shirinbai F. Bhesania, AIR 1984 Bom 357

It is also stated that in that auction, Rajinder Nath's sons were not permitted to bid because it was
limited to the three brothers only. It is argued that the sons' valuable rights in this property
cannot be defeated or foreclosed under the circumstances. It is worth noting in this regard that
the brothers mutually agreed that the bid should be limited to them only so that the property did
not fall into the hands of a third party. Rajinder Nath, as Karta of his smaller joint Hindu family,
could be interpreted in the same way. 
JUDGEMENT

The court held that even if the property had originally belonged to the joint Hindu family of Som
Dutt, the arbitration between the three brothers and sister had resulted in the severance of the
joint status, and that in any case, in light of Section 6 of the Hindu Succession Act and the
Supreme Court's decision in the case of gurupad khandappa magdum vs Hirabai khandappa
magdum, There was a deemed division, and the two sons of Rajinder Nath had rights qua the
share of money that had fallen to Rajinder Nath's lot, and they might enforce those rights in the
same.

However, there are other factors that cannot be overlooked and were taken into account when the
preliminary decree was issued. Som Dutt received a substantial amount of provident fund when
he retired, which far exceeded the amount invested in the acquisition of the plot and construction
of the property in dispute. Despite the existence of a nucleus of joint Hindu family property, it
did not acquire the character of joint Hindu family property with all of this independent source of
earnings and money available under the Hindu Gains of Learning Act of 1930. As a result, there
was no presumption that this property belonged to his Hindu family. It is difficult to be
impressed at this point that, while a joint Hindu family is a common occurrence and a
presumption in its favour arises, no such presumption exists with regard to the property. Until
proven otherwise, it must be treated as separate or self-acquired.

The court acknowledged that the three brothers were co-owners in equal shares. If the property
belonged to a joint Hindu family, the representation by all the brothers recognising a third share
of each could be considered a severance of joint status. Such a family is not a fixed concept, but
rather a moving one. It continues to rise as a result of births and fall as a result of deaths. No
member can claim a specific share of the joint property at any given time. Coparcenery is in the
same position. In these circumstances, once the members of the joint family or the heads of the
various branches of the coparcenery agree on the specification of shares, it can be treated as a
severance of joint status, though the division by metes and bounds may occur later. In these
circumstances, the parties' pleadings in the suit could be interpreted as a partition of joint status.
RELAVENT CASE LAWS case Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978)
3 SCR 761 : (AIR 1978 SC 1239)

 Bombay High Court in the case Nusserwanji E. Poonegar v. Mrs. Shirinbai F. Bhesania, AIR 1984 Bom 357

CONCLUSION

As a result, it may be stated that division is a weapon that serves the purpose of dissolving a
Hindu united family. A joint family property becomes the self-acquired property of each
coparcener according to their parts through the mechanism of partition. Partitioning can be
accomplished in one of two ways: by separating the property by metes and bounds, by severing
the joint status, or by both. In reality, the division occurs only when the Hindu Undivided
Family's joint status ends.