J. S. Bajaj & Ors Vs. Arjandas
Dayaram Vachhani & Ors  INSC 6 (21 January 1970)
21/01/1970 DUA, I.D.
CITATION: 1970 AIR 1226 1970 SCR (3) 440 1970
SCC (1) 382
The Displaced Persons (Compensation and Rehabilitation)
Rules. r. 19(2) and (3)-Scope of.
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 AB, C-F]
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
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 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
On an application under Arts. 226 and 227 of
the Constitution 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
"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.