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2012 DIGILAW 404 (MP)

None Joo v. Karan Singh

2012-04-13

ALOK ARADHE

body2012
Judgment ( 1. ) THIS appeal has been preferred by the plaintiffs. This Court vide order dated 23-4-1996 while admitting the appeal had formulated the following substantial question of law :- "Whether the lower Appellate Court was right in reversing the decree of the trial Court holding that respondent No. 1 Karan Singh was entitled to 1/3 share in the property of Ganpat in view of sections 8 and 18 of the Hindu Succession Act ?" ( 2. ) FACTS giving rise to filing of the appeal briefly stated are that plaintiffs filed a suit on the ground that they are the owners and in possession of the lands situate at villages Ganiyari and Malkapur. It was pleaded in the plaint that their grandfather namely Bhagirath had partitioned the lands during his lifetime and had handed over the possession 6( the lands. Since, then the parties are in separate cultivating possession of the lands in question. The plaintiff and Ganpat used to live jointly, Ganpat died issueless on 30-10-1954, therefore, his share devolved on the plaintiffs. Thereafter, the plaintiffs moved an application for mutation of their names in the revenue records. However, on an objection being raised by defendant No. 1, the revenue officer passed an order against the plaintiffs. Thereupon, the plaintiffs instituted the suit seeking the relief of declaration that the order passed by the revenue officer is null and void as well as permanent injunction restraining the defendants from interfering with their possession over the suit lands. ( 3. ) THE defendant No.1 filed the written statement in which inter-alia it was pleaded that suit lands are ancestral lands and were not subjected to partition on. It was further pleaded that defendant No. 1 also has share in the suit lands and is in joint cultivating possession with the plaintiffs. Therefore, he is entitled to share in Ganpat's share in the lands in question. The defendants No. 3 to 5 were proceeded ex parte by the trial Court. ( 4. ) THE trial Court vide judgment and decree dated 11-7-1990 while taking into account the admission made by defendant No. .1 namely Karan Singh (DW- 1) in paragraphs 3 and 4 of his statement held that during the lifetime of Bhagirath, the partition had taken place and the parties were in separate cultivating possession of the lands in question. ) THE trial Court vide judgment and decree dated 11-7-1990 while taking into account the admission made by defendant No. .1 namely Karan Singh (DW- 1) in paragraphs 3 and 4 of his statement held that during the lifetime of Bhagirath, the partition had taken place and the parties were in separate cultivating possession of the lands in question. It was further held that plaintiffs were in joint cultivating possession with late Ganpat. The trial Court in view of section 6 of the Hindu Succession Act, 1956 held that share of Ganpat would devolve on the plaintiffs. Accordingly, the suit was decreed. ( 5. ) BEING aggrieved by the aforesaid decriee, the defendant No. 1 preferred an appeal. The lower Appellate Court vide judgment and decree dated 14-12- 1995 inter aha held that partition had taken place during the lifetime of Bhagirath. It was further held that plaintiffs were in joint cultivating possession with late Ganpat. The lower Appellate Court further held that Ganpat's 1/3rd share in the lands would devolve on his father namely Rajaram as well as plaintiffs and defendant No. 1. Accordingly, it was held that defendant No. 1 is entitled to 1/4th share of 1/3rd share of deceased Ganpat in the suit lands. Accordingly, the decree passed by the trial Court was set aside. ( 6. ) LEARNED counsel for the appellants submitted that plaintiffs were full blood brothers of Ganpat whereas, defendant No. 1 is half blood brother of Ganpat and, therefore, in view of section 14 of the Hindu Succession Act, 1956, the plaintiffs are entitled to succeed to the share of deceased Ganpat to the exclusion of defendant No. 1. In support of his submissions, learned counsel for the appellants has placed reliance on Yellava Gounder and another vs. Lakshmi and others, AIR 1975 Madras 253, Sarwan Singh and others vs. Smt. Dhan Kaur and another, AIR 1971 Punjab and Haryana 323 and Waman Govind Shindore and others vs. Gopal Baburao Chakradeo and others, AIR 1984 Bombay 208. ( 7. ) ON the other hand, learned senior counsel for respondent No. 1 submitted that Ganpat died on 30-10-1954 and at the time of death of Ganpat, his father Rajaram was alive, who died on 5-9-1956 and, therefore, the share of Ganpat would devolve on his father. ( 7. ) ON the other hand, learned senior counsel for respondent No. 1 submitted that Ganpat died on 30-10-1954 and at the time of death of Ganpat, his father Rajaram was alive, who died on 5-9-1956 and, therefore, the share of Ganpat would devolve on his father. Learned senior counsel for respondent No. 1 has invited the attention of this Court to paragraphs 38, 39 and 43 of Hindu Law. ( 8. ) I have considered the submissions made on both sides and have perused the record. Admittedly, Ganpat died on 30-10-1954. At the time of his death, his father namely Rajaram was alive. Rajaram expired on 5-9-1956 i.e. prior to commencement of Hindu Succession Act, 1956. Chapter IV of the Hindu Law , deals with order of inheritance of males according to Mitakshara Law. Paragraph 36 provides that under Mitakshara, the right to inherit arises from propinquity, that is, proximity of relationship. Para 38 deals with classes of heirs namely Gotraja Sapindas, Samanodakas and Bandhus. Para 39(ii) provides that Gotraja Sapindas of a person according to Mitakshara are his six male ascendants in the male line, the wives of the first three of them, and probably also of the next three, that is his father, father's father, father's father, etc. Admittedly, Ganpat died issueless prior to commencement of the Hindu Succession Act. Therefore the provisions of Hindu Succession Act would not apply to the devolution of the property in the facts of the case. Therefore, the share of Ganpat in the property would devolve on his father namely Rajaram who was alive at that time and after Rajaram, to devolve on the plaintiffs and the defendants. ( 9. ) FOR the aforementioned reasons, the substantial question of law framed by this Court is answered in the affirmative and against the appellants. In the result, the appeal fails and is hereby dismissed with cost. Appeal dismissed.