Decided on May 18,1982



T.V. Rajagopala Rao, Judicial Member - (1.) THIS is an assessee's appeal against the order dated 23-1-1980 passed by the Commissioner (Appeals) in Appeal No. 83 of 1979-80. He had confirmed the decision of the GTO and dismissed the assessee's appeal filed before him. The facts leading up to the present appeal may be briefly stated as follows.
(2.) The assessee Kishan Devi is the wife of one Bhagirath Mal. Kishan Devi and Bhagirath Mal had three sons, namely, Amar Nath, Jai Nath and Prem Nath. Bhagirath Mal died on 29-4-1953 leaving behind him his separate properties and also his widow and three sons as his heirs. Kishan Devi filed a suit on 18-3-1953 for partition and separate possession of her share of properties left behind by her husband. It was later numbered as Suit No. 156 of 1955 on the file of the Sub-Judge, 1st Class, Delhi. While the suit was pending, a reference was made to arbitrators, Harichand and Hari Shankarlal through court on 16-10-1955. The arbitrators filed their award into the court. No objections were filed by the parties to the suit against the said award. Hence, the said award was made into a rule of the court on 21-11-1955. The following sentences in the award may be useful and so they are extracted as under : It was represented before us by Shri Amar Nath, Shri Jai Nath and Shri Prem Nath that before the death of their father, Bhagirath Mal, the respective parties in the suit had their personal properties which had all along been treated as such by the income-tax authorities. Each party shall hold himself or herself one-fourth of the said property and shall hold the same as 'tenant-in-common' as they have been holding since first day of May, one thousand nine hundred and fifty-three. The parties shall possess and enjoy the one-fourth share of the properties in severalty, to the exclusion of each other without any let or hindrance from one another. Provided always that the proprietary rights of Kishan Devi, plaintiff, shall be a 'life interest' only ceasing on her demise, when the inheritance of the same shall open and shall be in accordance with the provisions of Hindu law.
(3.) THUS, it can be seen that Kishan Devi was granted one-fourth undivided share in the said properties, which included a valuable property called 'Bhagirath Palace'. However, under the terms of the award, Kishan Devi was granted only life interest in the suit properties. It was made clear that she can enjoy her right as a tenant-in-common. So also the sons of late Bhagirath Mal were each granted one-fourth undivided share in all the suit properties. The following portion of the award also is felt important and so it is extracted as under : Now it is not possible and admissible to divide the properties by metes and bounds and as the plaintiff is already in possession and enjoyment of one-fourth of the property as 'tenants-in-common' from 1-5-1953, she is entitled to no relief and this suit shall stand dismissed. THUS, as per the terms of the award, the suit filed by Kishan Devi was dismissed.;

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