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2011 DIGILAW 1334 (MP)

Rajesh v. Keshar Singh

2011-11-24

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This is plaintiff’s second appeal against the judgment of reversal passed by learned first appellate Court dismissing the suit. 2. The facts necessary for disposal of this appeal lie in narrow compass. Suffice it to say that plaintiff Rajesh filed a suit arraying his father Keshar Singh and step-brother Babu as defendants No.1 and 2. Since the suit property is agricultural land, the State of M.P. has been arrayed as defendant No.3 in view of Order 1 rule 3(B) CPC (State Amendment). The suit is for declaration of his share, partition and delivery of separate possession. According to plaintiff, the suit property which is agricultural land is ancestral property and because he is having 1/3rd share in the suit property, it be so declared and accordingly partition be effected by delivering possession of 1/3rd share to him. 3. The defendants No.1 and 2 filed written statement and denied the plaint averments. According to the defendants, the suit property is not the property of HUF. Further it has been denied that plaintiff is the son of Keshar Singh. It has also been pleaded in the special plea that plaintiff’s mother Sampat Bai is not the wife of Keshar Singh. In the written statement, it has been pleaded that defendant is having one son and two daughters born from the wedlock of Kanchan Bai and apart from these three children, Keshar Singh is not having any other son or daughter. 4. Learned trial Court framed necessary issues and after recording evidence of the parties came to hold that Sampat Bai and Keshar Singh (defendant No.1) are the mother and father of plaintiff and Sampat Bai is the first wife of Keshar Singh. The learned trial Court further came to hold that Mamta and Pinki are the daughters of Keshar Singh from second wife Kanchan Bai. The second defendant Babu alias Sanjay is also the son of Keshar Singh but from Kanchan Bai and both the wives of Keshar Singh are alive. The learned trial Court hence found that plaintiff is having 1/5th share in the suit property and accordingly decreed the suit of plaintiff declaring him to be owner of 1/5th share and further passed a decree that he is entitled for separate possession. 5. The learned trial Court hence found that plaintiff is having 1/5th share in the suit property and accordingly decreed the suit of plaintiff declaring him to be owner of 1/5th share and further passed a decree that he is entitled for separate possession. 5. The first and second defendants filed first appeal before learned first appellate Court which has been allowed by the impugned judgment and the suit of plaintiff has been dismissed. 6. In this manner, this second appeal has been filed by appellant-plaintiff which was admitted on 24.6.1999 on the following substantial question of law : “Whether the reasons given by the first appellate Court for dislodging the finding recorded by the trial Court are correct, proper and legal?” 7. The contention of Shri Mehta, learned counsel for the appellant is that learned first appellate Court, contrary to law has come to the conclusion that suit property is solely owned by Keshar Singh and therefore during his life time, no partition can be effected. Learned counsel submits that suit property is ancestral property and therefore, the present suit for partition which has been filed by the plaintiff is maintainable and he is entitled to have 1/5th share and separate possession as directed by learned trial Court. Hence, it has been prayed that by allowing this appeal, the impugned judgment and decree passed by learned first appellate Court be set aside and that of learned trial Court be restored. 8. Despite respondents No.1 and 2 were served, none has put appearance on their behalf. 9. Shri Pramod Mitha, learned Government Advocate appears for respondent No.3 who is a formal respondent. 10. Having heard learned counsel for the appellant and after perusal of the record, I am of the view that this appeal deserves to be allowed in part. Regarding Substantial Question of Law framed : 11. On going through the findings recorded by learned first appellate Court, this Court finds that in para 8 of the impugned judgment, it has been categorically held by learned first appellate Court that the suit property was of Dariyao Singh who was the father of Keshar Singh (first defendant) and his brother Rameshwar. On going through the findings recorded by learned first appellate Court, this Court finds that in para 8 of the impugned judgment, it has been categorically held by learned first appellate Court that the suit property was of Dariyao Singh who was the father of Keshar Singh (first defendant) and his brother Rameshwar. Learned first appellate Court further came to hold that after the death of Dariyao Singh, a partition took place between Keshar Singh and Rameshwar and the suit property fell in the share of plaintiff’s father Keshar Singh and accordingly it was mutated in the revenue record solely in his name. Hence, according to learned first appellate Court, after partition, the suit property which fell in the share of plaintiff’s father amounts to his self acquired property and therefore during the life time of plaintiff’s father Keshar Singh (first defendant), the present suit for partition is not maintainable. 12. According to me, the approach of learned first appellate Court is wholly unwarranted under the law and the impugned judgment is illegal. True, after the death of Dariyao Singh, a partition took place between Keshar Singh and his brother Rameshwar in which the suit property fell in the share of Keshar Singh. But, it will be his self acquired property for all others except his male issue. According to me, the share allotted to a coparcener after partition would still be a coparcenary property between him and his male issue though it may be his self acquired property for the others. In this regard Article 221(4) of Mulla’s Hindu Law, 21st Edition, page 337 may be seen. Hence, the disputed property which was acquired by Keshar Singh in partition, still it will be a coparcenary property between him and his male issue. It is proved that plaintiff is the son of Keshar Singh. 13. The question now would arise what share appellant-plaintiff is entitled to. The finding of fact of lelarned two Courts below is that Sampat Bai who is the mother of plaintiff is the first legally wedded wife of defendant No.1 Keshar Singh and during the subsistence of first marriage, a second marriage has been solemnized by said Keshar Singh with Kanchan Bai from whom a male child namely Babu alias Sanjay (defendant No.2-respondent No.2) and two daughters namely Mamta and Pinki were born. During the pendency of this appeal, section 6 of Hindu Succession Act, 1956 has been amended by Hindu Succession (Amendment) Act, 2005 with effect from 9.9.2005. Under the amended section 6 of the said Act, the devolution of interest in coparcenary property is altogether different because under this provision, daughter of a coparcener is also entitled for the same share which a son of coparcener is having in a coparcenary property. Although a proviso has been enacted by the Legislature that nothing contained in sub-section (1) of section 6 of the said Act shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. Since this proviso is not coming in the way to this case, therefore, the two daughters of Keshar Singh (defendant No.1) namely Mamta and Pinki are also entitled for the same share in the coparcenary property. These daughters are born from the wedlock of Keshar Singh and Kanchan Bai. Under section 16 of the Hindu Marriage Act, 1955, the children born from the void or voidable marriage shall be the legitimate children and thus second defendant Babu and the daughters of Keshar Singh namely Mamta and Pinki being the children of first defendant Keshar Singh from second wife Kanchan Bai shall be his legitimate children. Although the second marriage of first defendant Keshar Singh is void because during the subsistence of his first marriage, he solemnized second marriage with Kanchan Bai. In that regard, section 5(1) and 11 of Hindu Marriage Act, 1955 may be seen. The first legally wedded wife of defendant Keshar Singh namely Sampat Bai who is the mother of plaintiff is still alive. 14. On scanning the entire gamut, the picture which is formed is that the suit property is the coparcenary property of first defendant Keshar Singh in which plaintiff Rajesh, his mother Sampat Bai (first wife of Keshar Singh), defendant No.1 Keshar Singh himself, second defendant Babu alias Sanjay and two daughters namely Mamta and Pinki born from the second wife Kanchan Bai are entitled for equal share. Thus, in this manner, the plaintiff is having 1/6th share in the entire suit property. 15. The impugned judgment of learned first appellate Court runs contrary to this well settled principle of law, hence it cannot be allowed to remain stand. Thus, in this manner, the plaintiff is having 1/6th share in the entire suit property. 15. The impugned judgment of learned first appellate Court runs contrary to this well settled principle of law, hence it cannot be allowed to remain stand. Accordingly, it is hereby held that the suit property is coparcenary property of plaintiff and he is entitled to 1/6th share. 16. The substantial question of law is thus answered that the impugned judgment of learned first appellate Court and its approach runs contrary to law and is based on mis-interpretation of law hence the same is not legal. 17. Resultantly, this appeal succeeds and is hereby allowed to the extent indicated hereinabove. The impugned judgment and decree passed by learned first appellate Court is hereby set aside and the suit of plaintiff is decreed to the extent that he is entitled to 1/6th share in the suit properrty and is further entitled to have separate delivery of possession to that extent. Let a decree be drawn up accordingly. 18. Looking to the facts and circumstances of the case, parties are hereby directed to bear their own costs. .............