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2006 DIGILAW 852 (MP)

Hari Shanker v. Kali Bai

2006-07-13

A.K.SHRIVASTAVA

body2006
Judgment ( 1. ) THIS second appeal has been preferred at the instance of defendant who has lost from both the Courts below. ( 2. ) THE plaintiff Kali Bai filed suit for declaration that she is having half share in the suit property and is Bhumiswami to that extent, with a further prayer that defendants be restrained from interfering in her possession on the suit land. The plaintiff further prayed the sale deed dated 27-8-1984 to the extent of half share of the plaintiff be declared as void ab initio and by the said sale deed her rights are not affected. ( 3. ) ACCORDING to plaintiff, one Natthu was the owner of agricultural suit land which was his ancestral property. After the death of Natthu, his widow Chhabi Rani (defendant No. 1) sold the property to the appellant Hari Shanker. Though after the death of Natthu plaintiff is having right, title and interest in the property as she being her daughter. ( 4. ) THE defendant refuted the plaint averments by filing written statement. It has been pleaded that the disputed land has been legally sold by Mst. Chhabi Rani, defendant No. 1 to Hari Shanker defendant No. 3 for a consideration of Rs. 18,000/- and, therefore, Hari Shanker is the Bhumiswami of the suit property. ( 5. ) THE Trial Court after framing necessary issues and recording the evidence dismissed the suit. The appeal which was preferred by defendant Hari Shanker has also been dismissed by the impugned judgment and decree. ( 6. ) DURING the pendency of the civil suit defendant No. 1 Chhabi Rani died and since her L. R. plaintiff Kali Bai and defendant Gulab Bai were already on record, her name was directed to be deleted from the cause title of the plaint. ( 7. ) THIS Court on 21-4-1992 admitted the second appeal on the following substantial question of law: Whether in view of the death of the original owner Natthu in the year 1960, succession to the property will be governed in accordance with the unamended Section 164 of the M. P. Land Revenue Code, as it stood before its amendment by the M. P. No. 38/61 or will be governed by Section 8 of the Hindu Succession Act ? ( 8. ( 8. ) IT has been vehemently argued by Shri K. N. Agrawal, learned Counsel for appellant that since Natthu has died in the year 1960 i. e. , after coming into force of M. P. Land Revenue Code, 1959 (in short the Code) which came into force on 2-10-1959, therefore, the devolution of the interest of a Bhumiswami shall on his death would pass in terms of unamended provision of Section 164 of the Code. According to learned Counsel, the existing Section 164 has been substituted in the year 1962. According to learned Counsel since the Bhumiswami, holder of the land, died in the year 1960, therefore, the devolution shall take place according to the unamended provision of Section 164, in which the daughter was not having any right in the land of a Bhumiswami who has died. Thus, the plaintiff Kali Bai who is the daughter of Natthu has no right, title and interest in the suit property and she cannot be said to be the heir of Natthu for the purpose of the unamended Section 164 of the Code and hence her suit should have and be dismissed. ( 9. ) PER contra Shri M. L. Jaiswal, learned Senior Counsel assisted by Ku. Vandana Shrivastava has submitted that indeed Natthu died earlier to 1958 and if that would be the position, since the Code was not in existence as it came into force on 2-10-1959, therefore, the provisions of Vindhya Pradesh Land Revenue and Tenancy Act, 1953 (in short the Act of 1953) was applicable and there was no specific provision in regard in the said Act of 1953 in regard to the devolution of the property of the owner of the agricultural land and, therefore, since Natthu died after coming into force of Hindu Succession Act, 1956 (for brevity the Act of 1956), therefore, the devolution shall take place in terms of Section 8 of the said Act. It has also been putforth by him that the sale deed executed by defendant No. 1 Chhabi Rani in favour of appellant/defendant No. 3 Heeralal would not in any manner prejudice the right of plaintiff and is not binding on her. According to learned Senior Counsel, the fining of the Trial Court holding that fraudulently the sale deed dated 27-8-1984 was got executed by Mst. According to learned Senior Counsel, the fining of the Trial Court holding that fraudulently the sale deed dated 27-8-1984 was got executed by Mst. Chhabi Rani in favour of Heeralal, has been affirmed by the First Appellate Court, and since no substantial question of law has been framed in that regard, this finding has attained finality and even if the substantial question of law so framed is answered in favour of appellant, the suit of plaintiff cannot be dismissed. ( 10. ) AFTER having heard learned Counsel for the parties and perusing the record, I am of the view that this appeal deserves to be dismissed. ( 11. ) ON going through Ex. P-3 which is a certified copy of annual Khatauni Jama Bandi of Samvat 2015 in regard to the disputed land, it is gathered that the name Natthu was entered in column No. 2, which is a column of owner. His name has been deleted and the name of his son Bihari Lal has been mutated on account of the death of Natthu. This entry has not been challenged anywhere. Thus, it is emphatically clear that Natthu died earlier to Samvat 2015. Even if Samvat 2015 (2015 = 1958) is taken to be a starting point, it would mean that Natthu died prior to coming into existence of the Code. Admittedly, M. P. Land Revenue Code came into force with effect from 2-10-1959. As Natthu died earlier to coming into force of the Code, his rights shall be devolved in accordance to the law prevailing on that date. Since there is nothing in the Act of 1953 in regard to the devolution of the interest of right of the owner of agricultural land, the provisions of Section 8 of the Act of 1956 would be applicable under which definitely, the plaintiff being heir, as she is the daughter of Natthu, is included in the list of heirs specified in Class I and as such, she is having right, title and interest in the suit property. ( 12. ) IN the plaint, it has been specifically pleaded that Natthu was having two sons, namely, Bihari and Ganesh and both of them have died issueless. Natthu was having two daughters, namely, plaintiff Kali Bai and defendant No. 2 Gulab Bai. Chhabi Rani (defendant No. 1) is the widow of Natthu. ( 12. ) IN the plaint, it has been specifically pleaded that Natthu was having two sons, namely, Bihari and Ganesh and both of them have died issueless. Natthu was having two daughters, namely, plaintiff Kali Bai and defendant No. 2 Gulab Bai. Chhabi Rani (defendant No. 1) is the widow of Natthu. It will be relevant to mention here that the name of Bihari after the death of Natthu was mutated. Bihari has also died issueless. The averments made in Para 2 of the plaint are admitted by the defendants. ( 13. ) APART from what I have held hereinabove, since the two Courts below have concurrently held on the basis of the appreciation of evidence that the sale deed (Ex. D-1) executed by Mst. Chhabi Rani in favour of defendant No. 3 Hari Shanker was got executed fraudulently which is a pure finding of fact, and on which no substantial question of law has been framed, therefore, the said finding that by the said sale deed the rights of plaintiff Kali Bai are not jeopardized in any manner, has attained finality. ( 14. ) THE substantial question of law is thus answered that the owner Natthu died in the year 1958 and, therefore, the provision of unamended Section 164 of the M. P. Land Revenue Code is not applicable because the Code itself did not come into existence on that date and, therefore, ownership rights of Natthu would devolve in accordance to Section 8 of the Hindu Succession Act. ( 15. ) RESULTANTLY, this appeal is found to be devoid of any substance and the same is hereby dismissed with cost. Counsel fee Rs. 1500/-, if pre-certified.