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2011 DIGILAW 701 (JHR)

Kadmi Mandalain v. Nomita Panjarin

2011-07-20

PRASHANT KUMAR

body2011
JUDGMENT Prashant Kumar, J.-These appeals filed against the judgment dated 4.4.1987 in Title Appeal No. 57 of 1975 passed by 5th Additional District Judge, Dumka whereby and whereunder he allowed the appeal in part and held that Respondent No.2 Kalia Mandalain (Original Appellant of SA No. 204/87) is not entitled to get any share in suit property, whereas plaintiff and Defendant No.1 entitled to get 1/2 share in suit property. 2. It is relevant to mention that SA No. 223 of 1987(P) was filed by Bharan Mandalain (Defendant No.1) who died during the pendency of present appeal and in her place her daughter Mangli Devi was substituted. From the perusal of record of S.A. No. 204 of 1987(P), it appears that plaintiff and defendant no. 2 died long ago and their legal heirs substituted vide order dated 10.3.1998. However, it appears that substituted appellant of SA No. 223 of 1987(P) had not taken step for substitution of legal heirs of plaintiff and Defendant No. 2 i.e. respondent nos. 1 and 2. Under the said circumstance, S.A. No. 223 of 1987(P) stand abated against respondent nos. 1 and 2. Accordingly, S.A. No. 223 of 1987(P) is dismissed. 3. S.A. No. 204 of 1987(P) admitted on 16.11.1987 on the following substantial question of law:-- I. Whether a plaintiff can be given a share more than what was claimed by her? II. Whether the view taken by the courts below that the property of Kapoor Baid (wrongly mentioned as Ganauri) will be inherited by survivorship and not according to the-Hindu Succession Act is erroneous in law? It is submitted by Sri Lalit Kumar Lal, learned counsel for the appellants that the suit property was a self-acquired property of Kapoor Baid and Satish Baid and the same was recorded in their exclusive names in the records of rights. It is further submitted that Kapoor Baid died in the year 1935 thus, after his death the share of Kapoor Baid in the suit land would devolve in original appellant (Kalia Mandalain) by law of inheritance. It is submitted that the learned appellate court committed serious illegality by holding that the suit land devolved in Satish Baid by survivorship, therefore original appellant is not entitled to get any share in it. It is further submitted that the original plaintiff (respondent no. It is submitted that the learned appellate court committed serious illegality by holding that the suit land devolved in Satish Baid by survivorship, therefore original appellant is not entitled to get any share in it. It is further submitted that the original plaintiff (respondent no. 2) claimed only 1/4th share in the suit property, but the appellate court granted relief of ½ share i.e. beyond the claim made by her in the plaint. Accordingly, it is submitted that the impugned judgment of the appellate court cannot be sustained. 4. On the other hand, it is submitted by learned counsel for the respondent no. 1 that it is admitted case of the party that the suit property was ancestral property of Kapoor Said and Satish Said. Thus, after the death of Kapoor Baid in the year 1935, the same devolved in Satish Said by law of survivorship, because he was the only co-parcener alive at that time. It is submitted that the said Satish Said died in the year 1945, thus on his death suit property devolved in his mother Uma Mandalain and after the death of Uma Mandalain, property devolved in original plaintiff/Respondent No. 1 and defendant no. 1/Respondent No.2. Accordingly, it is submitted that the appellate court rightly decided that the property devolved by survivorship and not by law of inheritance. It is further submitted that the appellate court has power to mould the relief in change circumstances. Thus, there is no illegality in giving 1/2 share to plaintiff in the suit property, though originally she claimed only 1/4th share. 5. For convenience, firstly I am taking second substantial question of law for consideration. It is admitted position that Ganauri Baid was the common ancestor of the parties, who died leaving behind his two sons Mahabal Said and Kapoor Said. It is also admitted that Kalia Mandalain (original defendant no. 2) was the daughter of Kapoor Baid. It is also admitted that Mahabal Said died before survev operation leaving behind his widow Uma Mandalain, son Satish Said and two daughters i.e. plaintiff and defendant no. 1. It is also stated at paragraph no. 4 of the plaint that the suit property, details of which given in the schedule of the plaint, recorded in the name of Kapoor Said and Satish Said. At paragraph no. 1. It is also stated at paragraph no. 4 of the plaint that the suit property, details of which given in the schedule of the plaint, recorded in the name of Kapoor Said and Satish Said. At paragraph no. 5 of the plaint, it is stated that the suit lands were ancestral property of Satish Said and Kapoor Said who were cultivating different portions of suit lands separately as per their mutual convenience. Defendant No. 2 Kalia Mandalain (original appellant of this case) had filed two written statement. On perusal of both written statement it appears that she had not made any averment that the suit land was the self-acquired property of Kapoor Said and Satish Said. It further appears that averments made at paragraph no. 5 of the plaint had not been denied by her in aforesaid two written statement. Under the aforesaid circumstance, the learned appellate court rightly concluded that it is an admitted position that the suit land was ancestral property of Kapoor Said and Satish Said. 6. It is not disputed that Kapoor Said died in the year 1935 during the lifetime of Satish Said, who happens to be the only surviving coparcener of Kapoor Said. It is also admitted that parties governed by Mitakshara School of Hindu Law. Section 34 of Mulla Hindu Law 18th Edition, Vol.-I deals with the devolution of property according to Mitakshara law, which runs as follows:- 34. Devolution of property according to Mitakshara Law.-In determining the mode in which the property of a Hindu male, governed by Mitakshara law, devolves on his death, the following propositions are to be noted:- (1) Where the deceased was, at the time of his death, a member of joint and undivided family, technically called coparcenary, his undivided interest in the coparcenary property devolves on his coparceners by survivorship (See Act XVIII of 1937 and 35); (2)(i) even if the deceased was joint at the time of his death, he might have left self-acquired or separate property. Such property goes to his heirs by succession according to the order given in 43, and not to his coparceners; (ii) if the deceased was, at the time of his death, the sale surviving member of a coparcenary property, the whole of his property, including the coparcenary property, will pass to his heirs by succession according to the order given in 43; (iii) if the deceased was separate at the time of his death from his coparceners, the whole of his property, however acquired, will pass to his heirs by succession according to the order given in 43; (3) if the deceased was re-united at the time of his death, his property will pass to his heirs by succession according to the rule laid down in 60 below. 7. "Coparcenary property" has been defined under Section 278 of the aforesaid Edition of Mulla Hindu Law. According to that, copercenary property consist of ancestral property or of joint acquisition, or/of property thrown into the common stock and accretions of such property. As noticed above the suit properties is ancestral property of Kapoor said and Satish Said and the same was jointly recorded in their names in the records of right. Thus, on the death of Kapoor Said during the life-time of Satish Said, the suit property devolved in Satish Said by survivorship, because he was only surviving coparcener of Kapoor Said. Thus, in the absence of any pleading by the appellant (defendant no. 2) that the suit property was the self-acquired property of Kapoor Said and/or his separate property, the same would not have devolved on his heirs by succession. Thus, I conclude that learned appellate court rightly took the view that share of Kapoor Said in the ancestral property devolved by survivorship and not according to law of succession. 8. Now coming to the first substantial question of law, it is relevant to mention that in the plaint the plaintiff/respondent no. 1 made following prayers:- (i) That a preliminary decree for partition for the suit lands by metes and bounds according to the respective share of the parties be passed. (ii) That a Commissioner be deputed to carve 1/4th share of the plaintiff in the suit lands and a final decree be passed allotting a separate takhta representing the 1/4th share of the plaintiff and separate possession of the same be delivered. (iii) That cost of the suit be decreed. (ii) That a Commissioner be deputed to carve 1/4th share of the plaintiff in the suit lands and a final decree be passed allotting a separate takhta representing the 1/4th share of the plaintiff and separate possession of the same be delivered. (iii) That cost of the suit be decreed. (iv) That any other relief or reliefs to which the plaintiff is entitled be also passed. The aforesaid prayers made by the plaintiff under the impression that share of Kapoor Baid would devolve on his death by law of inheritance. However, defendant no. 1 (original respondent no. 2) categorically stated at paragraph no. 14 of her written statement that after the death of Kapoor Baid, entire suit property devolved upon Satish Baid as he was the sole surviving coparcener. Thus there is dispute between the parties regarding the mode of devolution of suit property after the death of Kapoor Baid. 9. As noticed above, the learned appellate court below had accepted the case of respondent no. 2 and held that the shares of Kapoor Baid in the ancestral property devolved only in Satish Baid by survivorship, as he was the sole surviving coparcener. The learned appellate court further held that after death of Satish Baid entire suit property devolved in Uma Mandalain, mother of Satish Baid and after the death of Uma Mandalain the same devolved in plaintiff and defendant no. 2. The appellate court under the aforesaid changed circumstances held that plaintiff and defendant no. 1 are entitled to 1/2 share in the suit property. 10. It has been held in Pasupuleti Venkateswarlu vs. The Motor & General Trader's reported in (1975) 1 SCC 770 that "for making the right or remedy claimed by party just and meaningful as also legally and factually in accordance with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding, provided the rule of fairness to both sides are scrupulously obeyed." 11. In Shikharcharid Jain vs. Digambar Jain Prabandh Karini Sabha and Others reported in 1974(1) SCC 675 it has been held by their Lordship of Supreme Court at paragraph no. In Shikharcharid Jain vs. Digambar Jain Prabandh Karini Sabha and Others reported in 1974(1) SCC 675 it has been held by their Lordship of Supreme Court at paragraph no. 10 that:- "but it is open to a court (including a court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (i) by reason of subsequent change of circumstances become inappropriate, or (ii) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (iii) to do complete justice between the parties." 12. In Syed Jalil Zane vs. P. Venkata Murlidhar reported in AIR 1981 (AP) 328 the Andhra Pradesh High Court held that the plaintiffs were entitled to the relief claimed for upon the basis of the plea taken by defendants in their written statement. They further held that it was incumbent on the court under Order VII Rule 7 of the Code of Civil Procedure, 1908 to take notice of the altered circumstances since the institution of the suit and mould the relief accordingly in order to shorten the litigation and to do complete justice between the parties. 13. In the instant case defendant no. 1 (appellant in the court below) took specific plea, in her written statement, that the suit property devolved by survivorship and she successfully proved the same. Thus, it appears that in the changed circumstances, the learned appellate court below, with a view to do complete justice between the parties, had moulded the relief and held that the plaintiff and defendant no. 1 are entitled to get 1/2 share in the suit property. The aforesaid power is vested in the learned appellate court below by Order VII Rule 7 of the Code of Civil Procedure. 14. Thus, under the change circumstances, as per the provision contained under Order VII Rule 7 of the Code of Civil Procedure, plaintiff had been given more share than what was claimed by her. Accordingly, I find no illegality in the impugned judgment of learned appellate court in this regard. 15. In view of the discussions made above, I find no merit in this appeal. Accordingly, S.A. No. 204 of 1987(P) is dismissed. However parties shall bear their own cost.