JUDGMENT
Vikramajit Sen, J.
Suit No. 1763/98 & IA No. 7272/98, 3911/03, 1479/02, 11158/01
1. This Suit for partition and rendition of accounts has been filed on behalf of Master Pulkit through his mother and natural guardian, Smt. Neeta, wife of Shri Satish Kumar who has been imp leaded as Defendant No. 10. In the Plaint it has been stated that late Shri Bodh Raj Bhola, the great grandfather of the Plaintiff, died on 1.6.1995 at Delhi. In paragraph 2 of the Plaint it has been averred that the “deceased left behind in Pakistan lot of housing accommodation and accordingly as per law, as was prevalent then, filed various claims with the Ministry of Rehabilitation and the said Ministry of Rehabilitation accepted the claims of the deceased in full. The claims were utilised for the purchase of property at Kalkaji”. It is the case of the Plaintiff that from the sale of the Kalkaji house the suit property, bearing No. 8/6, W.E.A., Karol Bagh, New Delhi has been purchased. Learned counsel for Defendant No. 3 has pointedly drawn attention to the absence of any statement in the Plaint that the property left behind in Pakistan was an ancestral property in the hands of late Shri Bodh Raj Bhola. Learned counsel for the Plaintiff has been unable to show me any statement in the Plaint to this effect and his submission is that Income-Tax Returns are available. However, it is a cardinal principle of law that evidence can be led only in respect of averments in pleadings. Since there are no pleadings to the effect that the properties in Pakistan were ancestral properties in the hands of late Shri Bodh Raj Bhola, it is impermissible to look at documents which may indicate that those properties were ancestral. On a reading of the Plaint it is manifestly apparent that so far as the properties of late Shri Bodh Raj Bhola were concerned, these were not contemplated by the parties hereto as ancestral. The fact that none of the siblings of late Shri Bodh Raj Bhola have been imp leaded in the present Suit is indicative of this fact. Had ancestral properties been left behind in Pakistan, late Shri Bodh Raj Bhola, as also his siblings, would have had an equal right in those properties. I hold that the Estate of Late Shri Bodh Raj Bhola did not comprise any ancestral properties. This is also established by the fact that in the Probate proceedings filed by the Plaintiff’s paternal grandfather, this position had not been asserted.
2. There has been a previous litigation between the parties. On the demise of late Shri Bodh Raj Bhola a Will was presented for the grant of Probate. In those proceedings the paternal grandfather of the Plaintiff, namely, Shri Jagdish Mitter Bhola, Defendnat No. 9, was the Petitioner. The other children of late Shri Bodh Raj Bhola were imp leaded as Class-I heirs. In the course of that Petition a compromise was arrived at between the parties, i.e. the different Class-I heirs of late Shri Bodh Raj Bhola. There is a document dated 18.9.1996 available on the record which has been signed by these Class-I heirs. The compromise that was effected in the Probate case took place on 10.9.1996. Significantly, the father of the present Plaintiff was a signatory to that Family Settlement although as a witness. I have compared the signature of Shri Satish Kumar Bhola with his signature on an affidavit filed by him dated 3.10.2000 and am satisfied that the signature on the Family Settlement is that of Shri Satish Kumar Bhola. Learned counsel for the Plaintiff has attempted to assail the genuineness of this Family Settlement by drawing attention to the fact that it was executed one week after the Probate Petition was compromised and was, therefore, not a necessary document. This argument is devoid of merit. It is not in dispute that the grandfather of the Plaintiff, namely, Mr. Jagdish Mitter Bhola, Defendant No. 10 in those proceedings (as mentioned above the Petitioner in Probate Petition) received a share in the Estate of his father, namely, late Shri Bodh Raj Bhola.
3. The question of whether the minor Plaintiff could have been represented by the mother, while the father is alive, has not been clarified. No application for appointing the mother as the guardian ad litem has been filed. It is not in dispute that the father, namely, Shri Satish Kumar Bhola, has not received a share from the Estate of late Shri Bodh Raj Bhola. The canone of Hindu Law enunciate that it is the father who is the legal guardian of a minor Hindu. I am mindful of the fact that his signature is available on the family settlement dated 18.9.1996 and perhaps for this reason, he had decided to fight a proxy litigation on behalf of his son through his wife. The Family Settlement has not been mentioned in the Plaint and learned counsel for the Plaintiff states that the minor, as well as his mother, were unaware of it. This position appears to be wholly incredible, especially in view of the fact that the mother has admitted that she is living along with her husband, i.e. the father of Master Pulkit. It is obvious to me that the manner in which the present Plaint has been filed has been carefully contrived in order to mislead the Court. I am also of the view that an application for the appointment of a guardian ad litem has intentionally not been filed to avoid the Court’s focus on this very vital aspect of the case.
4. A question was raised as to whether citation had issued in the Probate case. Mr. Rustogi, learned counsel for Defendant No. 3, concedes that the citation was not issued. I am not, however, satisfied that the failure to publish the citation would render the Probate proceedings invalid and non est. The interests of the present Plaintiff must be held to have been safeguarded by his parental grandfather who had filed the Probate Petition, as well his father who had signed the family arrangement. My attention has been drawn to the decision taken by the Karnataka High Court in Bahubali Ramappa Padnad and Another vs. Babu @ Babu Rao S. Padnad and Others, , in which the Division Bench made the following observations :-
“10. It is well settled principles that the Civil Court has got jurisdiction to entertain the suit by virtue of S. 9 of C.P.C. which are all civil in nature. In view of the provisions of S. 23, Rule 3A the appellants are not being the parties in O.S. No. 16/91 and the said suit having been properly represented by the appellants’ father — Ramappa Padnad, it is not open for the appellants to question the said compromise decree. That apart, the appellants are not being the parties in O.S. No. 16/91 also have no locus-standi to file a Miscellaneous Application. It is accordingly, the learned Civil Judge, Athani has rightly dismissed the Miscellaneous Application No.8/95 filed under S. 151 of CPC and also rejected the plaint in O.S. No.4/96.
11. It is pertinent to note that O.S. 4/96 filed by the appellants are for claiming 1/6th share. We have already pointed out that the appellants’ father — Ramappa Padnad was a party represented in the suit and filed the compromise petition duly signed. In that view of the matter, it is not open for the appellants to take any other defense or to re-open the compromise as the same is found duly executed by their father — Ramappa Padnad and thereby the same is binding. The appellants being the L.Rs. of Ramappa Padnad they are entitled only to the share of their father and nothing more. Even on this count also that the compromise decree passed does not call for interference. ”
These observations apply on all fours to the situation before me. There are no averments in the Plaint which would, even prima facie, show that the interests of the minor Plaintiff were not adequately safeguarded either by his parental grandfather or by his father. Since the submission put forward before me by learned counsel for the Plaintiff is that a fraud had been committed on the minor Plaintiff, it is imperative that pleadings to this effect should exist in the Plaint. It is trite to state that where fraud is alleged, it must be carefully and meticulously disclosed in the pleadings itself. The Plaintiff, as well as his mother and father, are admittedly living with the child’s paternal grandfather.
5. In the arguments addressed by Mr. Rustagi, it was brought out that an Objection has been filed in the compromised Probate case. I would have expected learned counsel for the Plaintiff to have brought this fact to my notice. I shall ignore the fact that this was not brought to my notice by learned counsel for the Plaintiff. The fact remains that by Orders dated 18.7.2001, learned counsel for the Plaintiff was to inform the Court as to what course he would like to adopt in the future, viz. whether the present Suit was to continue or the Plaintiff would seek his relief via the Objections filed in Probate Case No. 32/95. In Rejoinder, learned counsel for the Plaintiff states that the application was filed subsequent to the present Suit and was, therefore, adjourned sine die without notice to Defendant No.3.
6. My attention has been drawn to Order XXIII Rule 3A which specifically bars a Suit for setting aside a compromise decree on the grounds that it was unlawful. Learned counsel for the Plaintiff was obviously mindful of this hurdle and has, therefore, filed the Objections in the afore-mentioned Probate case No. 32/95. Even thereafter he has not sought to elect between the two reliefs. In view of the bar contained in Rule 3A or Order XXIII, the present Suit is not maintainable.
7. The failure to publish citation in the Probate proceedings would have the effect that persons, other than those mentioned as Class-I heirs in the Probate Petition, would not be bound by the decision in the Probate proceedings. Failure to publish the citation would, therefore, restrict the efficacy of the Probate from being a judgment in rem to being a judgment in persona. Any person claiming to be a Class-I heir, who has not been imp leaded or served in the Probate proceedings, could be aggrieved by the absence of public citation of the Probate proceedings. Of course, other parties such as creditors or persons possessing independent rights in any of the assets of the Estate could also record legal umbrage. But a descendant of a living Class-I heir can have no grievance on this score. As I have already mentioned, there is no material on the record to disclose that the interests of the minor Plaintiff were not adequately safeguarded by the Class-I heirs of late Shri Bodh Raj Bhola, i.e. the paternal grandfather of the Plaintiff. This absence would not make a material difference. It must also be kept in perspective that it is not mandatory for Probate proceedings to be initiated in the case of Wills of Hindus, especially in Delhi. Therefore, I find no merit whatsoever in the argument that the Probate proceedings were illegal. In any event, the Family Settlement is available. Learned counsel for the Plaintiff has interjected in the dictation to state that it is a well-established principle that where even if a minuscule interest exist, citation is necessary. I have already dealt with this proposition and need not state any more.
8. The conduct of the Plaintiff — whether it is that of his mother or of his father, or for that matter of his grandfather, appears to me to be dishonest. The grandfather has already derived his share from the Estate of his father, i.e. the great grandfather of the Plaintiff. After this share has been obtained, the present Suit has been filed to upset the family arrangement. It has been held by the Hon’ble Supreme Court in Kale & Others v. Deputy Director of Consolidation & Others, that what has to be constantly borne in mind where the parties before the Court are members of a family the approach which is to be adopted by the Courts is to give effect to such family arrangements rather than shoot it down on legalese and forensic technicalities. This is for the reason that harmony must be maintained where a family is concerned.
9. The present Suit, as well as applications, are accordingly dismissed. Interim Orders are re-called. Since the Suit is a gross abuse of judicial process, costs of Rs. 25,000/- are imposed, to be paid by the mother/father of the minor Plaintiff. Costs to be paid to the Prime Minister’s Relief Fund within thirty days.