- (1.) THIS regular first appeal is directed against the judgment dated 24th August, 1967, of the Subordinate Judge Ist Class, Amritsar, whereby the suit of the plaintiff--appellant (hereinafter to be called the appellant ) was dismissed in respect of properties in suit except one House No. 369 which was held to be the joint Hindu family property.
(2.) THE appellant, Shri Sant Ram, filed the suit, out of which the present appeal has arisen, against his father Shri Parma Nand, respondent No. 1, his brothers, respondents Nos. 2 and 3, Smt. Shakuntala, wife of his brother Ram Parkash (respondent No. 4) and one Shri Tilak Raj, Respondent No. 5, for declaration that the appellant and respondents Nos. 1, 2 and 3 constituted joint Hindu family with his father, respondent No. 1, as Karta or manager and that the properties as detailed in items Nos. 1 to 9 of the plaint were joint Hindu family properties. It was pleaded that some of these properties had been inherited from his grandfather and the others were the acquisitions from the joint family fund. It was averred that Shri Jawahri Mal, grandfather of the appellant, carried on business in Amritsar and at the time of his death left a considerable property comprising of shops, houses gold jewellery and cash amounting to one lakh rupees as well as agricultural land and houses in village Ibban Kalan, tehsil and district Amritsar. The joint Hindu family also carried on business as commission agents under various names and in partnership with various persons in Amritsar, from which considerable profit was accumulated. The appellant also worked in these business enterprises without any salary. Even taking to Government employment, a part of the salary was also used to be given by him to his father as Karta of the joint Hindu family. The business carried on by Smt. Shakuntala Devi, respondent No. 4 and Tilak Raj, respondent No. 5, was in fact benami and had been brought into existence from the income of the joint Hindu family. It was further averred that the appellant had brought a similar suit for declaration in the Court of Shri Onkar Nath, Subordinate Judge, Amritsar in 1964 (vide Suit No. 42 of 1964 ). On 20th Jan. 1965, during the pendency of the said suit, at about midnight his signatures were fraudulently obtained by his father, respondent No. 1. When he himself was under the influence of sleeping drugs. It was also alleged that at the time respondent No. 1 had represented that the entire dispute between the members of the joint Hindu family was to be referred to arbitration. The document on which the signatures of the appellant had been procured contained an admission on his part that he had no right, title or interest in the properties detailed in items Nos. 3 to 8 and House No. 376 in item No. 1 as described in the heading of the plaint of the said earlier suit. Having come to know of the fraud played on him, the appellant submitted an application, in the Court of Subordinate Judge on the next day, i. e. , 21st Jan. 1965, with a prayer that the said document should be on him. This application is again stated to have been withdrawn on the next day under the undue influence of his father and the alleged arbitrator Shri Sardul Singh. On 22nd Jan. 1965, the appellant made a statement in the Court of the Subordinate Judge in the earlier suit making a similar admission regarding abandoning his claim with regard to some properties and also his request to strike out the names of defendants Nos. 4 and 5. According to the appellant, this statement was made on account of the assurance given to him by his father and the arbitrator that he will be given due share in the joint Hindu family properties. As averred by him, the order of the Sub--Judge in the earlier suit dismissing a part of the suit regarding the properties mentioned in his statement was not binding on him because the same had been manoeuvred as a result of the exercise of undue influence, fraud and misrepresentation. Subsequently the appellant made an application on 26th March, 1965 under O. 23, R. 1, Civil P. C. Seeking permission to withdraw the suit with permission to bring a new suit on the same cause of action. This suit was allowed to be withdrawn by the trial Sub--Judge vide his order dated 31st March, 1965, in which it was clearly mentioned that permission will not include the part of the suit which had been earlier dismissed with regard to some properties on 22nd Jan. 1965 and against defendants Nos. 4 and 5. The present suit was filed in pursuance of this order of the learned Subordinate Judge in the previous suit.
(3.) IT is clear from the various averments in the plaint that the appellant has sought declaration in the present suit to the effect that all the properties enumerated in the heading of the plaint were joint Hindu family properties comprising of the appellant and respondents Nos. 1 to 3. Besides this, declaration has also been sought that admission or statement made by him previously in the earlier suit on 22nd Jan. , 1965, is not binding or him as the same had been obtained by fraud, undue influence and misrepresentation.;