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2012 DIGILAW 150 (RAJ)

Hari Shankar Sharma v. Puran Singh

2012-01-12

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—The defendant-appellant has preferred this Civil First Appeal against the judgment and preliminary decree dated 12.8.1994 passed by the Additional District Judge No.1, Bharatpur in Regular Civil Suit No.80/93 (122/88) whereby the partition suit filed by plaintiff-respondents has been decreed. 2. It is an admitted fact that the property in dispute originally belonged to common ancestor of the parties and, therefore, it was a coparcenary Hindu Undivided Family property. The disputed property consists of three different properties, the first being in the form of house property, the second a shop and the third property is in the form of “Bagichi” consisting of open land and a 'Shivalaya' situated on it. The appellant-Hari Shankar who died during the pendency of this appeal and plaintiff-respondents-Shri Puran Singh and Prem Nidhi are brothers, whereas rest of the respondents are their sisters. It is also an admitted fact that property Nos.2 and 3 as described above are not partitioned at any point of time. The case of the plaintiff-respondents was that all the properties are still undivided and belong to the joint hindu family and, therefore, are liable to be partitioned equally between all three brothers, whereas the contention of the defendant-appellant was that the property No.1 i.e. house property was divided in the year 1966 by the father of the parties in his life time and the portion of this property in which the plaintiffs and some tenants are residing came into the share of father of the parties and plaintiff whereas the open land situated adjacent to the constructed portion of this property exclusively came into the share of defendant-appellant and he by his own earnings, constructed a house upon that land and therefore, that portion of the property exclusively belongs to him. It was also contended by the appellant in the written statement that a 'Shivalaya' is situated in the Bagichi, therefore, this property is impartible and no partition can be effected of it. The defendant-respondent-Smt.Sushila Devi filed separate written statement and she mainly supported the contention of defendant-appellant, whereas rest of the respondents did not appear and contest the suit. Both the parties produced oral as well as documentary evidence and the learned trial Court after hearing the respective parties came to a conclusion that there is no evidence on record indicating that the house property was ever previously partitioned. Both the parties produced oral as well as documentary evidence and the learned trial Court after hearing the respective parties came to a conclusion that there is no evidence on record indicating that the house property was ever previously partitioned. As a consequence of that, the suit was decreed and the share of each of the parties was declared. Feeling aggrieved, the defendant-appellant Hari Shankar came to this Court by way of this appeal. During the pendency of appeal he died and his legal representatives have been substituted in place of him. 3. I have heard the learned counsel for the parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties. 4. I am of the view that following issues have arisen requiring consideration of this Court:- (i) Whether the house property was partitioned by the father of the parties in the year 1966 and the portion of this property as indicated by the appellant came to his share and therefore, the suit to that extent is liable to be dismissed ? (ii) Whether the land of the Bagichi on which a 'Shivalaya' is situated is a impartible property and therefore, partition of that property cannot be effected ? (iii) What is the share of each of the parties ? 5. My finding with reasons on each of the issues raised is as follows: (i) It is an admitted fact that all the properties involved in this case originally belonged to a common ancestor of the parties and, therefore, the properties belonged to a Hindu Undivided Family. The case of the plaintiffs was that all the properties are liable to be partitioned, whereas the case of the appellant was that the house property was orally partitioned by the father of the parties-Shri Panna Lal in the year 1966. It is an admitted fact that Shri Panna Lal was died in the year 1967. The trial Court after appreciating and evaluating the evidence oral as well as documentary available on record came to a clear finding that there is no evidence of previous partition of the house property. I am of the considered view that looking to the evidence available on record, the finding of the trial Court cannot be said to be perverse or contrary to the record. I am of the considered view that looking to the evidence available on record, the finding of the trial Court cannot be said to be perverse or contrary to the record. The general principle is that a Hindu family is presumed to be joint unless contrary is proved and the burden of proving is on the party claiming disruption of status as well as partition of the property belonging to the family. When a plea of partition is raised, it has to be substantiated, as under law, there is presumption as to jointness. Even separate possession by co-shares may not, by itself, lead to a presumption of partition. In the present case, there is no reliable evidence produced on behalf of the appellant even prima facie indicating that the house property was partitioned by the father of the parties in the year 1966 or at any other time. To the contrary, there is sufficient documentary evidence available on record indicating that the house property remained joint at all the time. It is an admitted fact that all the three brothers and their mother-Smt.Triveni Devi filed a Civil Suit No.271/82 in a competent Court and in that suit it was alleged that the house property is a joint property of the parties. In that suit the plaint was filed on 24.9.82 and it was also signed by the present appellant Shri Hari Shankar Sharma. The appellant has tried to explain that as that suit was filed against a third person the property in dispute was described as joint family of the parties and he did not object to that fact. I am of the view that the explanation given by the appellant is not tenable and he is bound by the admission made by him. Apart from that there is substantial variation between the pleadings and evidence produced by the appellant regarding the fact of oral partition and the portion of the house property which came in his share. No doubt according to Hindu Law father is entitled to effect partition of even coparcenary property and such partition is binding on sons but in the present case in absence of reliable evidence the contention of appellant regarding oral partition by father in the year 1966 cannot be believed. No doubt according to Hindu Law father is entitled to effect partition of even coparcenary property and such partition is binding on sons but in the present case in absence of reliable evidence the contention of appellant regarding oral partition by father in the year 1966 cannot be believed. I find no illegality or infirmity in the conclusion arrived at by the trial Court, therefore, the finding of the trial Court is confirmed. (ii) It is an admitted fact that the third property which is in the form of a Bagichi consists of open land upon which a 'Shivalaya' is also situated. It is an admitted fact that partition has not been effected of this property. Although, the places of wordship are not divisible and they may be held by the members of a family by terms but in the present case, only by the reason that a 'Shivalaya' is situated, it cannot be said that the whole of the third property is impartible and the suit to the extent of this property is not maintainable. I am of the view that the appellant or his son-Shri Satya Prakash, who is now a party to this appeal, by any reason considers that he has an exclusive right to wordship the idol, he can pursue a separate and proper remedy for that purpose but by that reason also it cannot be held that this property is impartible. (iii) It is an admitted fact that all the properties belonged to a common ancestor of the parties and it is a Joint Hindu Family property. The plaintiff-respondents claimed that each of the three brothers only has 1/3 share, whereas the contention of the appellant was that so far as the share of sisters is concerned, only they can contend whether they have any share in the property or not. The respondent-defendant-Smt.Sushila Devi in the written statement contended that if the Court comes to a conclusion that no previous partition has been effected, then her share may be given to her. The two other sisters neither filed written statement nor contested the suit. The learned trial Court held that in the property the plaintiffs, the defendant-appellant and their father-deceased-Shri Pannalal had ¼ share each and after the death of Shri Pannalal each of the parties has 1/6 share in the ¼ share left by Shri Pannalal. The two other sisters neither filed written statement nor contested the suit. The learned trial Court held that in the property the plaintiffs, the defendant-appellant and their father-deceased-Shri Pannalal had ¼ share each and after the death of Shri Pannalal each of the parties has 1/6 share in the ¼ share left by Shri Pannalal. I am of the view that the ground on which share of the parties was determined by the learned trial Court cannot be held to be according to law by the reason that at the time of institution of the suit or passing of the decree Shri Pannalal was not alive as admittedly he died in the year 1967. I am of the view that the share is to be determined at the time of actual partition or passing of the decree. If determination is made according to law as was applicable at the time of passing of the preliminary decree by the trial Court, each of the brothers only had 1/3 equal share in the properties in dispute but during the pendency of this appeal Section 6 of the Hindu Succession Act has been amended and even in coparcenary property, daughter has been conferred equal right in the same manner as of the son. The amended Section 6 of the Hindu Succession Act is as follow:- “6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,— (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect— (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.” 6. In the present case, as only the preliminary decree has been passed by the trial Court and neither final decree has been passed nor the property has been partitioned by metes and bounds, the amended provision would apply and each of the parties including the sisters has 1/6 equal share in the property in dispute. Hon'ble Supreme Court in the case of Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & anr. Hon'ble Supreme Court in the case of Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & anr. Reported in (2011) 9 SCC 788 has held that un-less a final decree of partition has been passed and the coparcenary property has been partitioned by metes and bounds, the amended provision would be applicable and even daughter is entitled to claim her share in the coparcenary property of a joint Hindu family governed by the Mitakshara Law. As in the present case no final decree of partition has been passed and the preliminary decree has been challenged by way of this appeal, I am of the view that respondents No.3 to 5 also has 1/6 equal share in the property in dispute. 7. Therefore, subject to modification as stated above, I do not find any merit in this appeal requiring interference by this Court. 8. Consequently, subject to above modification in regard to share of each of the parties, the impugned judgment and preliminary decree passed by the Additional District Judge No.1, Bharatpur in Civil Suit No.80/93 (122/88) is confirmed and the appeal filed by the defendant-appellant is dismissed. No order as to costs.