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2007 DIGILAW 566 (MP)

Vijay Goyal v. Madanlal Goyal

2007-05-14

S.S.JHA, SANJAY YADAV

body2007
JUDGMENT Jha, J. -- 1. This appeal is filed against the order rejecting the plaint under Order VII rule 11, CPC by the trial Court. 2. Brief facts of the case are as under: (i) Plaintiff has filed a suit for declaration and perpetual injunction. In the plaint, plaintiff pleaded that suit properties are the properties of Joint Hindu Family. The properties are situated at Gwalior and Surat in the State of Gujarat. Plaintiff has valued the suit at Rs.4lacs. Plaintiff has sought further relief that he should not be dispossessed from the suit properties as he is a coparcener and is entitled for declaration that he has 1/3rd share in the properties of Joint Hindu Family. (ii) Defendant filed an application under Order VII rule 11, CPC that suit is undervalued in order to avoid the payment of advolarem Court fee on the valuation of the suit. Plaintiff is seeking partition in the garb of declaration. Suit for declaration without seeking consequential relief of partition is not maintainable. Suit as filed is not maintainable. (iii) Trial Court rejected the plaint on the ground that suit for declaration alone without seeking further relief for partition is not maintainable. Suit for injunction against coparcener is not maintainable as held in I the case of Pyarelal v. Nandlal [ 1982 MPWN 27 ]. 3. Shri Aniket Naik submitted that the Full Bench of this Court in the case of Diwan Singh v. Bhaiya Lal [ 1997(2) JLJ 167 = 1997(2) MPLJ 202 ], has held that sale of Joint Hindu Family property governed by Mitakshra School of Benaras by one coparcener without the consent of another coparcener is void. Therefore, plaintiff is entitled for injunction restraining defendant from alienating the coparcenary property. He submitted that 1/3 share in the property requires adjudication. If plaintiff is not willing for partition, then also he cannot be denied of decree for declaration of his share in the Joint Hindu Family property. 4. On the other hand, Shri Vinod Bharadwaj, Advocate argued that suit against the coparcener for injunction is not maintainable. During the life time of the father, plaintiff has no right in the property. In support of his contention, he relied upon the judgment of apex Court in the case of Commissioner, Wealth Tax v. Chandra Sen [ AIR 1986 SC 1753 ], and Yudhishter v. Ashok Kumar [ AIR 1987 SC 558 ]. During the life time of the father, plaintiff has no right in the property. In support of his contention, he relied upon the judgment of apex Court in the case of Commissioner, Wealth Tax v. Chandra Sen [ AIR 1986 SC 1753 ], and Yudhishter v. Ashok Kumar [ AIR 1987 SC 558 ]. Learned counsel for the respondent submitted that under section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the "Act of 1956") rights of those coparceners were saved which were existing on the date of commencement of the Act. Plaintiff's father has inherited the property in his individual capacity and right of succession will be governed by section 8 of the Act of 1956. Therefore, plaintiff has no cause of action and trial Court rightly rejected the plaint. 5. While considering the argument, following questions are required to be determined: (i) Whether section 6 of the Act of 1956 is restricted only to the coparceners who were members of Joint Hindu Family on the date of commencement of the Act of 1956? (ii) Whether plaintiff has right to claim perpetual injunction to protect the coparcenary property? (iii) Whether son/coparcener can file suit for declaration of his joint possession and extent of his share against the Karta/Manager or another coparcener when alienation by Karta/father is without legal necessity or benefit of estate? 6. Looking to the important questions of law involved, on the request of the Court, Shri R.D. Jain, Senior Advocate assisted the Court as amicus cunae. 7. Shri Jain submitted that birth right of son in coparcenary still exists. Section 6 of the Act of 1956 is not limited and is applicable to coparcenary. He submitted that Single Bench of this Court has taken a view that after the Act came into force, birth right in coparcenary has vanished in the case of Chandrakanta v. Ashok [ 2002(3) MPLJ 576 ]. In this case reliance is placed upon the judgment of apex Court in the case of Commissioner, Wealth Tax (supra) and Yudhishter (supra). He submitted that in both the judgments, previous larger Bench judgment of apex Court in the case of Raj Rani v. Chief Settlement Commissioner, Delhi [ AIR 1984 SC 1234 ], is not considered. In this case reliance is placed upon the judgment of apex Court in the case of Commissioner, Wealth Tax (supra) and Yudhishter (supra). He submitted that in both the judgments, previous larger Bench judgment of apex Court in the case of Raj Rani v. Chief Settlement Commissioner, Delhi [ AIR 1984 SC 1234 ], is not considered. He submitted that section 8 of-the Act of 1956 flows '\ from section 6 where manner of calculating the share of each member of the coparcenary is examined calculating notional partition. This question is considered in the case of Gurupad v. Hirabai [ AIR 1978 SC 1239 ], wherein, right of inheritance of son as a coparcenary has been accepted. Similar view is taken by this Court in the case of Bhawribai v. Hari Singh [2006(3) MPJR SN 19]. Apex Court in the case of Sher Singh v. Gamdoor Singh [ (1997)2 SCC 485 ], has upheld the birth right of a son. He submitted that in view of other judgments, law laid down by the judgment in the case of Commissioner, Wealth Tax (supra), and Yudhishter (supra), should not be relied upon as earlier judgment on the question has not been considered. The precedence in the case of Union of India v. K.S. Subramanian [ AIR 1976 SC 2433 ], is to follow the judgment of the larger Bench. He submitted that the right of Karta, manager or father of the coparcenary governed by Mitakshara School of Law to alienate the property can be examined by examining the school by which they are governed. He submitted that in Madhya Pradesh in the areas which are governed by Benaras School, the coparcener is not entitled to alienate his share without the consent of the other coparceners and the question has been adjudicated by the Full Bench in the case of Diwan Singh v. Bhaiya Lal [ 1997(2) JLJ 167 = 1997(2) MPLJ 202 ]. He has referred to Article 256 and 269 of the Mulla Hindu Law. He also submitted that under section 41 (h) and 38 of the Specific Relief Act, no injunction can be issued against the Karta or the coparcener restraining him from alienating his share. However, the coparcener can challenge the sale-deed after the sale-deed is executed on the grounds of want of legal necessity or sale is not for benefit of estate or other grounds. However, the coparcener can challenge the sale-deed after the sale-deed is executed on the grounds of want of legal necessity or sale is not for benefit of estate or other grounds. This view is taken in the light of the apex Court judgment in the case of Commissioner, Wealth Tax (supra) and Yudhishter (supra), but both the judgments have not referred to the previous judgment. In these judgments it is held that after the Hindu Succession Act came into force, old Hindu Law will have no application and succession will be governed by the Act of 1956. Under section 8 of the Act of 1956, son is a Class I heir who has right of succession after the death of his father and has no right during the life time of his father. 8. Before adverting to the question of law laid down in the cases, pleadings in the plaint are perused. In the plaint, it is pleaded by the plaintiff that properties were initially held by Ramswaroop Goyal. On the death of Ramswaroop Goyal, his properties were jointly inherited by his widow Smt. Mayadevi and adopted son Madanlal (defendant No.1). Madanlal and Mayadevi jointly held the properties and the properties were sold by them in the year 1970 and purchased another house from the sale proceeds at Daulat Ganj. This property was jointly owned by Mayadevi and Madanlal. Mayadevi executed a will whereby she bequeathed l/3rd of her share in favour of the plaintiff and after the death of Mayadevi, plaintiff is now coparcener of the property. It is further contended that in the joint firm of Madanlal and Mayadevi, Mayadevi had 40% share in the firm. Plaintiff claimed that he has also acquired share in the partnership firm by virtue of the will executed by Mayadevi. Plaintiff has therefore claimed that plaintiff is a coparcener in the business of the firm and the properties which are ancestral properties after plaintiff's grand mother executed a will whereby she has given 1/3rd of her share to the plaintiff. In the circumstances, the principles of the law laid down in the case of Commissioner, Wealth Tax (supra) and Yudhishter (supra), will not be applicable. In these cases, it is held that there is no right of succession to sons during the life time of their father. Right of succession is under section 8 of the Act of 1956. In the circumstances, the principles of the law laid down in the case of Commissioner, Wealth Tax (supra) and Yudhishter (supra), will not be applicable. In these cases, it is held that there is no right of succession to sons during the life time of their father. Right of succession is under section 8 of the Act of 1956. It is true that no injunction can be granted against the coparcenary, but limited injunction can be granted against the coparcenary restraining them from dispossessing the member of the family. 9. In the three Judge Bench judgment in the case of Raj Rani (supra), the question of right of son after the death of the father is considered. The judgments in the case of Raj Rani (supra), and Gurupad (supra), relate to question of succession. In the case of Gulabrao Balwantrao Shinde v. Chhabubal Balwantrao Shinde [ (2003) 1 SCC 212 ], it is held that son has a birth right in the ancestral property, but leaving the question open about the birth right, at this stage, from bare reading of the plaint it is apparent that plaintiff has not claimed right through his father, but has also claimed his right in the property on account of inheritence from his grand mother Smt. Mayadevi. Plaintiff has pleaded in the plaint that Mayadevi and Madanlal jointly purchased House No.149, Daulatganj, Ward No.57 and the Stridhan of Smt. Mayadevi is also in possession of the plaintiff. Mayadevi had also purchased another house by registered deed of sale on 17.3.1959 and plaintiff has acquired right in the properties after the death of grand mother of the plaintiff. Plaintiff's grand mother died in the year 1980. Since, plaintiff's grand mother died in the year 1980 after coming into force of Act of 1956, her limited right at the time of death of Ramswaroop Goyal has become absolute under section 14 of the Act of 1956. In the circumstances, plaintiff can claim share in the properties which were jointly owned by defendant No.1 and Mayadevi and burden is on the plaintiff to establish that nucleus of fund for business from Gujarat is derived from the joint properties of defendant and Mayadevi and he has a right in the firm. Considering the facts of this case, the cases of Commissioner, Wealth Tax (supra), and Yudhishter (supra), are not attracted in the facts of this case. 10. Considering the facts of this case, the cases of Commissioner, Wealth Tax (supra), and Yudhishter (supra), are not attracted in the facts of this case. 10. Plaintiff has also claimed protection of his possession by perpetual injunction. In the plaint, plaintiff has disclosed cause of action in his favour and the pleas raised by the plaintiff are to be determined by the trial Court after the written statement is filed and evidence is recorded. If after written statement, Court is of the opinion that suit can be disposed of on preliminary issues, Court can proceed to decide the preliminary issues, if evidence is required to adjudicate the preliminary issue/issues 11. Before parting, we express our gratitude to Shri R.D. Jain, Senior Advocate for his valuable assistance to the Court. 12. In the result, order passed by the trial Court is set aside and application under Order 7 rule 11, CPC filed by the defendant is dismissed. Suit is remanded back to the trial Court for its adjudication on merit. Appeal succeeds and is allowed. Cost of the appeal shall be as per decision of the suit.