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2001 DIGILAW 1118 (PAT)

Sudlia Karjee v. Smt. Shailbala Sahi

2001-12-12

RADHA MOHAN PRASAD

body2001
Judgment 1. With consent of the parties, this appeal was heard along with I.A. No. 9816 of 1999 for final disposal. 2. This appeal is directed against part of the order dated 27.3.1999 passed in Partition Suit No. 87 of 1994, whereby learned Subordinate Judge V, Muzaffarpur has rejected the petition dated 8.3.1999 filed on behalf of the plaintiff to restrain the defendants by an order of temporary injunction from selling the land detailed in Schedule I of the plaint and also from getting the trees cut till the disposal of the suit. 3. The plaintiff claimed to be the daughter of the predeceased daughter Ram Chameli Devi and filed suit for partition against sister of her mother and her sons. Admittedly the suit land originally belonged to Sri Jagat Prasad Singh, Maternal grand father of the plaintiff and father of defendant no. 1. Sri Jagat Prasad Singh died in the year 1990 leaving the properties intestate. According to the plaintiff the said properties were inherited by her and the defendant first party having equal half and half share. It is alleged that the defendants in collusion with the husband of defendant first party have brought into existence the deed of gift dated 31.12,1977 purported to have been executed by Sri Jagat Prasad Singh in favour of defendant no. 2 for an area of 10 acres 34 decimals out of Schedule I land. They also brought into existence another deed of gift dated 31.01.1982 said to be executed by Sri Jagat Prasad Singh in favour of defendant no. 3. She has further stated that in order to give the colour of genuineness of transaction through the aforesaid deed of gift they also brought into existence another deed of gift dated 31.12.1977 purported to have been executed by Sri Jagat Prasad Singh in favour of the plaintiff in respect of an area of 3 acres of land. According to the plaintiff Sri Singh was not capable to execute any deed nor he was capable to understand the nature of documents since the year 1973-74 and all the three deed of gifts are void, collusive and never executed by Sri Jagat Prasad Singh in perfect mind knowing the contents as noted therein. The plaintiff has prayed to set aside the said documents. The plaintiff has prayed to set aside the said documents. The defendants claimed that they are bonafide donees of late Jagat Prasad Singh and unquestionably in possession of the suit land. 4. It appears that earlier also the plaintiff filed injunction petition on 15.9.1994 and defendants filed show cause on 30.9.1994, but it was never moved and finally on 12.11.1997 on agreement of both the parties that the suit itself be heard the plaintiffs lawyer did not press the petition for injunction because the suit was ready for hearing and accordingly, injunction petition was rejected as not pressed. The hearing of the suit started on 14.12.1998 and after examination of eight witnesses, plaintiff filed time petition on 28.1.1999. The plaintiff again filed present petition on 8.3.1999 for the aforementioned relief, which has been rejected by the impugned order. The Court found that the plaintiff deliberately delayed disposal of the suit otherwise the suit itself would have been disposed of earlier. The Court also found that no prima facie case is made out on behalf of the plaintiff and that the balance of convenience does not lie in favour of the plaintiff. Regarding irreparable loss the Court found that the law of lis pendens is there to guard the interest of a party to the suit and also that the plaintiff is not going to suffer any loss or injury which cannot be compensated in terms of money. 5. It is contended on behalf of the appellant that the learned Subordinate Judge has- erred in rejecting the prayer for grant of temporary injunction for untenable reasons. According to the learned counsel for the defendant-respondents the suit itself is not maintainable as the plaintiff has no legitimate claim for the suit properties. According to the learned counsel for the Respondents, the plaintiffs mother died long before the Hindu Succession Act, 1956 came into force and Sri Jagat Prasad Singh continued to be the absolute owner of the suit property till his death. According to him 1956 Act does not entitle share in the suit property to a daughter of the predeceased daughter, who died before 1956 Act came into force as under then existing law the female had no right of inheritance of a property left behind intestate. Mr. According to him 1956 Act does not entitle share in the suit property to a daughter of the predeceased daughter, who died before 1956 Act came into force as under then existing law the female had no right of inheritance of a property left behind intestate. Mr. Singh, learned counsel appearing for the appellant has submitted that Section 8 of the Hindu Succession Act is absolutely clear and it provides that a property of the male Hindu died intestate shall devolve firstly upon the heirs being the relatives specified in Class I of the Schedule. He submitted that the daughters of the predeceased daughter is included in Class I of the Schedule, and, thus, the appellant being Class I heir is entitled for share in the suit properties of Jagat Prasad Singh, who admittedly died intestate. 6. Prima facie, there does not appear to be substance in the submission of the learned counsel for the appellant. The Supreme Court in the case of Eramma V/s. Veerupana & ors., reported in A.I.R. 1966 Supreme Court 1879 has held that there is nothing in the language of Section 8 to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in Section 8 make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. With reference to Section 6 of the Act, the Apex Court held that "it is clear from the express language of the Section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. "Section 6 provides that "when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act." Thus, according to the Supreme Court decision the language of Section 8 is to be construed in the context of Section 6 of the Act, which means that after the commencement of the Act.it is only where a male Hindu dies having an interest in Mitakshara coparcenary property, his interest in the property is to be devolved by survivorship upon the surviving members of the coparcenary and not in accordance with Section 8. However, I do not wish to express any final opinion on this as this question can yet be considered at the time of hearing of the suit on merit. Moreover, the court below has rightly considered that the plaintiff has prayed to set aside the documents but so long those documents stand the plaintiff cannot have prima facie case in her favour. The court has also rightly considered about the balance of convenience and on the question of irreparable loss and injury and I do not find any infirmity in same. 7. This appeal is, thus, dismissed.