Harbans Kashyap v. Sita Kashyap & Ors.

1. The present appeal is directed against the order ofthe learned Single Judge dated 18.3.2011 by which he has held that an application for enquiry into damages and mesne profits made in the circumstances by the applicant, legal heir ofone ofthe deceased defendant —who had by strength ofawill claimed to be the legal heir ofanother deceased— plaintiff(No. 1).

2. The brieffacts ofthe case are that in.the partition suit, the preliminary decree was drawn on 10.5.2007. Subsequently, on 19.11.2007, the Court recorded the following order; "The report of the Local Commissioner has been received. In terms of para 8 of the report of the Local Commissioner, the parties have agreed to sell the jewellery found in the locker and divide the proceeds between themselves. It has also beenfound that the locker in question has not been operated after 26.IL1985 and, thus, there is no FAO(OS) 238/2011 Page 1 2013:DHC:6916-DB question ofremoval ofjewellery by anyparty. Asfar as the immovableproperty bearing No. 5A, Uuru GobindSingh Marg, New RohtakRoad, KarolBagh, New Delhi • • 110005 is concerned, once again it has been found that the property is not capable ofpartition and as per para 18 oj the report, it has been agreed by the parties that the same should be sold and proceeds divided The property is stated to be in partpossession ofdefendant No. 1whereas remainingportion is inpossession ofdefendants No. 2and 3. Thefinal decreefor partition ispassed in respect ofboth the movable and immovable properties directing that the properties being incapable ofpartition, the same would have to be sold. The decree-sheet be drawn up accordingly on requisite stamppaper beingfiled. In view of the aforesaid, the Local Commissioner appointed is directed to take stepsfor sale ofjewellery and to ' divide theproceeds asper the shares declaredoftheparties.; Insofar as the immovableproperty bearing No. 5A, Guru GobindSingh Marg, New RohtakRoad, Karol Bagh, New Delhi 110005 is concerned, it is directed that the same be sold by public auction and the parties will be entitled to bid in the public auction to the exclusion oftheir share. Learned counsel for the parties state that they are atpresent notpossession of sufficient means to deposit the stamp dutyfor preparation p/ thefinal decree, but that out ofthe saleproceedsfrom the sale^ ofthe saidproperty, the stamp duty be purchased and to that extent, the amount be not released to the parties. Ordered accordingly. List before the Joint Registrar for settlement of, proclamation ofsale on 03.01.2008. List before the Courtfor directions on the report ofsale ofboth the movable and immovableproperties on 31.03.2008:''

3. The proceedings in the suit continued even after 19.11.2007; so much so that the original suit filed would indicate that the proceedings ar||till on and previous date of hearing was 29.7.2013. In these circumstafees, the Page 2 application LA. No. 14803/2010 was moved by Ms. Binu Pun, adi^ittedly, the daughter ofMs. LeelaPuri, the original plaintiffNo. 2and nie(^|ofthe plaintiff No. 1Ms. Sita Kashyap. She claimed to be heir of Ms. Sita Kashyap by virtue ofaWill which is propounded in the proceedings. The application was contested by the other parties — primarily by the defendmt, Nos. 1and 2- brothers in the partition suit. They, inter alia, stated thatthe application itselfwas not maintainable, havingbeen preferred afterthe final decree was made. They fUrther contested that the Will was aforged one. Admittedly, during the course of its proceedings, the contention prevailed and the Court has refused to accept that the Will propounded by ^s. Binu Puri was validly executed or genuine. It is further stated that Ms. |inuPun has prefened an appeal against that order so that there is no dispute about the fact that Ms. Binu Puri was entitled to succeed to the estate;;of her mother Ms. Leela Puri who also died during the pendency of tiie proceedings after 2011. ' 4, By impugned order, the learned SingleJudge heldthatthe application Pl^iming mesne profits and calculations ofdamages to be maintmnable. In doing so the Court took note of several decisions including full Bench rulings of the Patna and Madras High Court as well as vanous jijci^ments citedby the parties.

5. Counsel for the appellant contends that the impugned order is unsustainable. He draws sustenance from the judgments reported as Ponnuswami Udayar and Anr. v. Santhappa Udayar and Ors., AIR 1963 Madras m,A.R. Yeerappa Gomderv. Sengoda Gomder, (1975) 1MLJ 53 and Rattan Lai v. Madan Lai Malhotra, 1979 (81) PLR 238. It was submitted that each of these judgments relied upon by the leamedj.Smgle 1,M, I •:-i. Page 3 Judge pertained to adifferent fact situation whereby enquiry intpqmesne profits was directed after the preliminary decree was drawn and before a final decree had been made. Counsel stressed upon this crucial difference betweenthe facts ofthe present case and the facts ofthese cases relied upon, statingthat the final decree had been directed by the order dated 19.11.2007 and under the circumstances since original plaintiff never sought mesne profits or enquiry into the damages, the applicant Ms. Bern Pun could not have done so. It was contended that with the issuance of final decree;on ' 19.11.2007, nothing remained and all that had to be done was to carry out directions with regard to all the properties and distribution ofthe proceeds. It is lastly submitted that applicant Ms. Beni Puri sought for damages in her personal capacity as is contended or alleged legal heir ofMs. SitaJ^ashyap, and not in her capacity as legal heir ofher mother Ms. LeelaPuri., -j.

6. Learned counsel for the respondent resisted the submissions jand rehed upon the rulings of the fiill Bench of the Madras High Court in B. Basavayya v. B. Guravayya, AIR 1951 Madras 938, to submit that in order to do complete justice and to ensure proper enquiry offiiture mesne profits, which should be indicated by successful ac^udication, if necessai^^ even more than one final decree can be drawn. The fiill Bench's view oftlie same High Court i.e. Madras High Court in a subsequent judgment in Gnanaprakasa Mudaliar and Ors. v. V.B. Anandathanadavan &6rs,i999 (2) CTC 6, was cited as the decision ofthe full Bench ofthe Patha High Court in Indradeo PrasadSingh and another v. Sheonath PrasadSirigh and AIR 1980 Patna 201., |j

7. This Court has considered the submissions as is evident from afacial reading ofthe order of 19.11.2007. Even though the learned Single.^e characterised the directions as afinal decree, there is nothing really final I I;, ' • Page/f: aboutthe ordermade. Itdirected certam stepsto be taken toward of the property and distribution of the proceeds. There was no finality ^ regardingevents whichtookplaceafterthepreliminarydecreewas dravm'in the form of affirmation of entitlement ofthe party; crucially the Court did not close proceedings by recording accord and satisfaction. This distinguishes the above cited authorities from the facts ofthe present case. Though entitlementsofthe parties were declaredthroughpreliminarydecree dated 10.5.2007 and further reiterated on 19.11.2007, nothing concrete was done except to take on record the Legal Commissioner's report and directions towards the realisation of the parties' entitlement. Although the learned Single Judge has dealt with in great detail about the maintainabiljty ' ofapplication afterthe final decree is directedto be drawn, this Court wo|ild rest its decision onthis narrow distinction without expressing any opinion on the observations of the learned Single Judge. Since there was no final decree and active steps were taken pursuant to the Court's directions which were recorded fi-om time to time, the Court once again reiterates thati^e fmal decree had not been drawn; the parties were exploring possibilities of settling it independently or alternatively through acceptable mode I'of disposing offtheproperty. |,

8. In view of above discussion, this Court is not persuaded l?! ||>e appellant's submissions as to the maintainability ofthe apphcatipril -Asitfkas the merits are concerned as there is no dispute that applicant Ms. Beni Puri was entitled to move the Court at least as the daughter of Ms. I^eela Puri, plaintiff No. 2. Irrespective of whether she ultimately siicGee[4],,m proving the Will made by late Sita Kashyap was avalid one onino|'|^hb would necessarily have been entitled to 1/3"^ of the properties \yhich are subject matter ofthe suit. Page 5

9. Having regard to these facts and circumstances, the Cou|||,g|e opinion that no fauU cante found in the impugned order. The^pr^ealjis accordingly dismissed.

S.RAVINDRABHAT,J 5 (JUDGE) AUGUST 12,2013 mv NAJMIWAZIRI, J (JUDGE) Page 6