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2017 DIGILAW 1116 (MP)

Vikram Singh v. Anil Kumar

2017-11-01

VIVEK RUSIA

body2017
ORDER 1. The defendant has filed the present civil revision being aggrieved by the order dated 24.1.2017 by which, the learned Civil Judge, Class-II, Jaora, District Ratlam has rejected his application under Order 7 rule 11 of CPC. 2. The respondents No.1 to 4 filed the suit for declaration, partition and permanent injunction against the present applicant. The plaintiffs No.1 and 2 are real brother and plaintiff No.3 is sister and plaintiff No.4 is their mother. The defendant No.1 is father of plaintiffs No.1 and 2 and husband of defendant No.4 and all of them belongs to Hindu religion and governed by Hindu Law. The agriculture land of various survey numbers mentioned in para 2 of the plaint is recorded in the name of defendant No.1 being an ancestral property. The applicant/defendant No.1 got the suit properties from his father. According the plaintiffs, the defendant No.1 without partition of the property has sold the land bearing Survey No.255/2 area 0.454 are by registered sale deed to Bhanwarkunwar Bai. The defendant No.1 is having only 1/5th share in entire ancestral property, therefore, they are co-owner of the ancestral property and having 4/5-4/5 share each and entitled to get mutated after the partition and defendant No.1 be restrained to alienate the suit property. 3. The defendant No.1 filed an application under Order 7 rule 11 of CPC for dismissing the plaint on the ground that during his lifetime the suit is not maintainable under the provisions of section 8 of Hindu Succession Act, 1956 and the Madhya Pradesh Land Revenue Code, 1959. The aforesaid application was opposed by the plaintiffs and thereafter, the learned trial Court has partly allowed the application on the ground that whether the plaintiffs No.1 and 2 being son and daughter of defendant No.1 have got the right by way of birth or not, which can be decided after evidence on merit, hence, the plaint is not liable to be dismissed and directed the plaintiff to value the suit for relief of partition and pay the ad-valorem Court fees. Being aggrieved by the aforesaid order, the present petition before this Court. 4. Counsel for the petitioner submits that the plaintiffs are claiming share in the ancestral property being son and daughter of defendant No.1 i.e. present applicant. Being aggrieved by the aforesaid order, the present petition before this Court. 4. Counsel for the petitioner submits that the plaintiffs are claiming share in the ancestral property being son and daughter of defendant No.1 i.e. present applicant. They all were born after the year 1956, therefore, under section 8 of the Hindu Succession Act, he cannot get the relief of partition and share in the property during the lifetime of their father. In support of his contention, he has placed reliance over the the judgement passed in the case of Sushila Bai and others v. Smt. Rajkumari and others, reported in 2017(I) MPJR 228, Ghanshyam s/o Kanhaiyalal v. Kanhiyalal s/o Siddhnath and others, reported in 2007(4) MPLJ 418, Sheela Devi and others v. Lal Chand and another, reported in 2007(1) MPLJ 435, Chandrakanta and another v. Ashok Kumar and others, reported in 2002(3) MPLJ 576 , Anil and others v. Gattulal and others, reported in 2004 RN 109, Babulal v. Ramkali Bai, reported in 2012(II) MPWN 58 , and Dilip Kumar Jain Vs. Shobharani @ Sabitri Bai Jain and others, reported in 2005(4) MPLJ 66 . 5. In reply, Shri M.L. Jain, learned counsel appearing on behalf of the respondents submits that the plaintiffs No.1 to 4 has got the right by way of birth in the ancestral property. The defendant No.1 is trying to disposes of the ancestral property, therefore, in order to protect the property, the suit has been filed for partition and permanent injunction and, therefore, the suit is maintainable and revision is liable to be dismissed. 6. As per the pleadings in the plaint, the entire suit property is ancestral property and recorded in the name of defendant No.1/present applicant. The plaintiffs are claiming respective shares in the property being son and daughter of defendant No.1. 7. That the entire land is an agricultural land. Under section 164 of the Madhya Pradesh Land Revenue Code, 1959, the property devolves upon the death of the Bhumiswami and not during his life time. Section 164 of the Madhya Pradesh Land Revenue Code is reproduced below : "Devolution – Subject to his personal law the interest of Bhumiswami shall, on his death, pass by inheritance, survivorship of bequest, as the case may be." 8. Section 164 of the Madhya Pradesh Land Revenue Code is reproduced below : "Devolution – Subject to his personal law the interest of Bhumiswami shall, on his death, pass by inheritance, survivorship of bequest, as the case may be." 8. The property in question is recorded in the name of defendant No.1 as Bhumiswami who is still alive, therefore, during his lifetime, the plaintiffs are entitled to claim the partition and get their names recorded in the revenue record. 9. That prior to coming into force of Hindu Succession Act, 1956, the grand son in the Mitaksara Coparcenary property was having birth right but after commencement of Hindu Succession Act, 1956, by virtue of section 8, the property of Hindu male dying intestate is to be devolved according to the provisions of Chapter 2 of the Act, firstly upon the heirs, being the relatives specified in class I of the Schedule; secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased, therefore, by operation of section 8, the son's son get included and the son land inheritates the property to the exclusion of his son. 10. This Court in case of Uttam v. Saubhagsingh and others (Second Appeal No.206/2005) vide order dated 29.10.2013 has held as under : "9. Under section 8 of Hindu Succession Act, the property of a male Hindu dying intestate is to devolve according to the provisions of Chapter-II of the Act, firstly upon the heirs, being the relatives specified in Class-I of the Schedule and if there is no class I heir then upon Class II heir and so on. In the schedule grand-son has not been included in the list of class I heirs, whereas son of a predeceased son is included therein, therefore, grand-son's birth right on the coparcenary property no longer exists under the Act and grand-son cannot claim partition during the lifetime of his father. 10. The Supreme Court in the matter of Commissioner of Wealth Tax Kanpur etc. 10. The Supreme Court in the matter of Commissioner of Wealth Tax Kanpur etc. v. Chander Sen etc., reported in AIR 1986 SC 1753 , while approving the view taken by this Court in the matter of Shrivallabhdas Modani v.Commissioner of Income Tax MP-I, reported in (1982) 138 ITR 673; Allahabad High Court in the matter of Commissioner of Income tax UP v. Ram Rakshpal Ashok Kumar, reported in (1968) 67 ITR 164; the Full Bench judgment of Madras High Court in the matter of Additional Commissioner of Income Tax v. P.L. Karuppan Chettiar, reported in [1978]114 ITR 523; and judgment of Andhra Pradesh High Court in the matter of Commissioner of Wealth Tax A.P-II v. Mukundgirji, reported in 144 ITR 18, has held that since in Schedule to the Hindu Succession Act, only son is included and son's son is not included as Class I heir, therefore, the son would inherit the property in the situation contemplated by section 8 of the Act not as Karta of his own undivided family and that one should look only to the Act and not to the pre-existing Hindu law. Referring to section 8 of the Act, it is held that son's son get excluded and the son alone inherits the property to the exclusion of his son. In the judgment of this Court in the matter of Shrivallabhdas Modani (supra), which has been approved by the Supreme Court in the above judgment, it was held by this Court that son's son is not mentioned as Class I heir in the Schedule and therefore, he cannot get any right in the property of his grand-father under the Act. The right of son's son in his grand-father's property during the lifetime of his father which existed under the Hindu law as in force before the Act is not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in suchproperty has ceased to have effect. It was further held that section 8 of the Act should be taken as a selfcontained provision laying down the scheme of devolution of the property of a Hindu dying intestate. It was further held that section 8 of the Act should be taken as a selfcontained provision laying down the scheme of devolution of the property of a Hindu dying intestate. The Allahabad High Court in the matter of Commissioner of Income Tax U.P. v. Ram Rakshpal Ashok Kumar (supra), has held that in case of assets of business left by father in the hands of his son, it would be governed by section 8 of the Act and he would take in his individual capacity. The Madras High Court in the matter of Additional Commissioner of Income Tax v. P.L. Karuppan Chettiar (supra), had held that by reason of section 8 of the Act, the son's son gets excluded and the son alone inherits the property to the exclusion of his son and that the statutory provision contained in the Act must prevail in view of the unequivocal intention in the statute itself, expressed in section 4(1). The Andhra Pradesh High Court in the matter of Commissioner of Wealth Tax A.P-II v. Mukundgirji (supra), had taken the view that the properties which devolved upon heirs mentioned in Class I of Schedule under section 8 of the Act constituted the absolute properties and the son's son will have no right by birth in such properties. The Supreme Court in the matter of Chander Sen (supra), has approved the above view of this Court as well as Allahabad, Andhra Pradesh and Madras High Courts. The contrary view of the Gujarat High Court has been dis-approved by the Supreme Court. 11. In the matter of Yudhishter v. Ashok Kumar, reported in AIR 1987 SC 558 , referring to the earlier judgment in the case of Chander Sen (supra), it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and others v. Lal Chand and another, reported in (2006)8 SCC 581 , it has been further clarified by the Supreme Court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu Law. In that case son's son was born prior to the commencement of 1956 Act, therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act. The Single Bench of this Court in the matter of Chandrakanta and another v. Ashok Kumar and others, reported in 2002(3) MPLJ 576 , has also held that after coming into force of Hindu Succession Act, the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in the matter of Babulal and others v. Ramkali Bai and others, reported in ILR[2012] MP 1271." 11. The aforesaid judgment of this Court has been upheld by the apex Court in case of Uttam v. Saubhag Singh and others, reported in (2016)4 SCC 68 , therefore, from the aforesaid law, the issue has been settled now that during lifetime of father the son cannot claim the right in the property during the lifetime. 12. Hence, the present suit filed by the plaintiffs is not maintainable. Impugned order 24.1.2017 is set aside and the revision petition stands allowed. 13. No order as to costs.