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2008 DIGILAW 1744 (PAT)

Raj Kumar Choubey v. Dulhin Janki Devi

2008-12-08

MIHIR KUMAR JHA

body2008
JUDGEMENT 1. Heard Mr. Kamal Nayan Choubey, learned Senior counsel for the defendant- petitioners and Mr. V. Nath, learned counsel for the plaintiff-opposite parties. 2. In this application the petitioner has assailed the impugned order, whereby and whereunder the prayer of the defendant-petitioners for abatement of the suit under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act (hereinafter referred to as the Act) has been rejected on the ground that the relief of declaration that the plaintiffs are the daughter of late Khedaru Choubey and Phoolkuery cannot be gone into by the consolidation authorities and consequently would not lead to abatement of the suit. 3. Counsel for the petitioners has submitted that the suit filed by the plaintiff-opposite parties was out and out a suit for partition in which the question as to whether the plaintifs are the daughter of Khedaru Choubey or not was a merely an incidental issue. He would, therefore, submit that when the main relief in the suit was for partition, the view taken by the court below of rejecting the prayer of the defendant-petitioner for abatement would be in the teeth of the statutory requirement under Section 4(c) of the Act. He has placed his reliance on the judgment of this Court in the case of Bijali Thakur & Ors. V/s. Rameshwar Thakur & Ors., reported in 1977 BBCJ 701 [: 1977 PLJR 410], in the case of Chaturbhuj Prasad Singh V/s. Satya Prasad Singh & Ors., reported in AIR 1985 Pat. 255 [:1985 PLJR (NOC) 49] and in the case of Bettiah Estate V/s. Pushpa Devi & Ors., reported in 1986 PLJR 222, to contend that even in a composite suit the doctrine of severability should be applied as there could be always be partial abatement of a suit. He had who would summed up his submissions that even if the part of the relief of declaration of relationship of the plaintiffs being daughter of Khedaru Choubey could still be gone into by the civil court, the relief of partition being severable suit to that extent at least would definitely abate. 4. Mr. V. Nath, learned counsel appearing on behalf of the opposite parties, however, has explained the whole aspect in a different manner. 4. Mr. V. Nath, learned counsel appearing on behalf of the opposite parties, however, has explained the whole aspect in a different manner. He would contend that a suit for partition in normal circumstances would definitely abate but when on showing of the defendant-petitioners, they themselves were responsible in getting the suit converted for one seeking also a declaration of relationship of the plaintiffs being daughters of Khedaru Choubey in view of a specific stand in the written statement questioning not only the relationship plaintiff with Khedaru Choubey but also even the date of death so as to affect the right of their inheritance, had no longer left it to be suit for partition inasmuch as the result of the suit was to be governed on the main relief as to whether the plaintiffs were daughter of Khedaru Choubey or not? Elaborating his submissions from yet another angle Mr. Nath has further submitted that dispute of the date of death of Khedaru Choubey as raised by the defendant-petitioners had not only expanded the horizon of the suit for determining the relationship having of the plaintiff with Khedaru Choubey but the very right of the plaintiffs to inherit and acquire the property of Khedaru Choubey. It has been in this context explained by him that plaintiffs had originally contended in the plaint that the date of death their father Khedaru Choubey was in 1950 but the same was also sought to be denied by the defendant-petitioners by shifting it back to 1937, so as to eliminate the applicability of the provisions of right to succession under Hindu Succession Act, 1956 and confining as also restricting the plaintiffs to the limited Rights of a Woman under the rigours of limited interest under Hindu Womens Right to Property Act, 1937, which would altogether exclude the possibility of claiming share by the married daughters in the estate of their father dying in 1937. He has thus concluded that the suit in question primarily involves the issue of right of succession and inheritance and as such suit would not abate in the light of the ratio of the judgment of the Apex Court in the case of Ram Sakal Singh V/s. Most Monako Devi & Ors., reported in 1997(2) PLJR (S.C.)63. 5. He has thus concluded that the suit in question primarily involves the issue of right of succession and inheritance and as such suit would not abate in the light of the ratio of the judgment of the Apex Court in the case of Ram Sakal Singh V/s. Most Monako Devi & Ors., reported in 1997(2) PLJR (S.C.)63. 5. This Court after considering the aforementioned submissions as also perusing the materials on record is of the view that the suit in question is not one merely for partition rather in the light of the serious contentions raised by the parties on the issue of declaration sought by the plaintiff to the daughters of Khedaru Choubey, it is out and out a complicated civil suit for determining right of succession and inheritance to the property of their father Khedaru Choubey. The moment the defendant-petitioners have contested the very status of the plaintiffs by questioning not only their line of succession by calling upon to prove them to be the daughter of Khedaru Choubey but also had questioned the year of death of Khedaru Choubey, it no longer remained a plain and simple suit for partition. All the rights of the plaintiffs in fact would squarely depend on the main relief relating to declaration that they are the daughter of Khedaru Choubey and further what they had inherited the property of Khaderu Choubey as a Class-1 heir. In such a situation, Mr. Nath seems to be correct in relying on the aforementioned judgment of the Apex Court in the case of Ram Sakal Singh (supra) wherein it has been laid down that where the main relief is one which can be given only by the civil court, the consequential relief will also have to be decided by the civil court itself. As held above, there would be no difficulty in accepting this part of the submission of Mr. Nath that the suit on account of the stand taken by the defendant-petitioners definitely is not a simple suit for partition rather the same is only an incidental or consequential relief to the main relief of the plaintiff seeking declaration of being daughters of Khedaru Choubey and inheriting their properly as a Class-I heir to the exclusion of any right of the defendant- petitioners. 6. The reliance placed by Mr. 6. The reliance placed by Mr. Choubey on the judgment of this Court Bijali Thakur (supra) and Bettiah Estate (supra) is also misplaced because the facts of both the cases did permit severability of relief which however is not possible in the present case. In fact the subsequent Supreme Court judgment in the case of Ram Sakal Singh (supra) would squarely apply to the facts of this case. In that case also the declaration of title was found to be wholly dependent on the question of nature of the sale deed whether void or voidable since and in that contact by the Apex Court had held that as the relief of declaration of title would depend squarely on the status and nature of the sale deed, no part could be made severable and therefore, there would not be a question of partial abatement. 7. That being so, this Court would find that the Court below has committed no error in rejecting the prayer of the defendant-petitioner and would hold that the suit as with regard to abatement of suit. 8. In the result, this application has no merit and is dismissed accordingly.