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2017 DIGILAW 1797 (RAJ)

SURENDRA NATH ASOPA v. JAISENDRA NATH

2017-08-10

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : VIRENDRA KUMAR MATHUR, J. 1. This civil regular First Appeal under section 96 CPC has been filed against judgment & decree dated 27.11.2007 passed by the Additional District Judge (FT) No.4, Jodhpur in Civil Original suit No.100/2007 (Surendra Nath v. Jasendra Nath & others), whereby suit of the plaintiff has been partially decreed. 2. Briefly stated, the appellant-plaintiff filed a suit for partition of the property of his father late Kunwar Lal Asopa. It was stated that late Kunwar Lal in his lifetime made a writing and expressed his last desire that after his demise, his property be divided amongst all four sons equally and his daughters should not be given anything in the property. It was also stated that the plaintiff, by incurring personal expenses of Rs. 6 Lacs got constructed additional rooms on the roof, first floor & second floor. It was also mentioned in the plaint that the portion constructed by the plaintiff be given in the share of plaintiff and if it is not possible, then the expenses borne by him be got compensated from other sharers. In this manner, the plaintiff claimed 1/4th share in the disputed property. 3. In sum and substance, case of the plaintiff is that the property in hands of late late Kanwar Lal came to him by partition from his father and Kunwar Lal during his lifetime executed a 'tehreer' expressing his desire to divide the property equally amongst his four sons and excluded his daughters and further, that the building on the first floor and above, were raised from personal funds of the appellant-plaintiff. It was also stated that the respondent No.1 only appeared amongst the respondent defendants and he supported the averments made in the plaint. Statement of plaintiff was not opposed by any of the defendants and hence, suit of the plaintiff deserves to be decreed in to in terms of relief prayed for by the plaintiff. 4. The trial court vide judgment & decree dated 27.11.2007 decreed the suit partially and granted 1/6th share to plaintiff instead of 1/4th share. Being aggrieved by the judgment & decree dated 27.11.2007, the appellant-plaintiff has preferred this appeal on the ground that the trial court committed serious error of law as well as on facts in deciding issues No.1 and 2. Being aggrieved by the judgment & decree dated 27.11.2007, the appellant-plaintiff has preferred this appeal on the ground that the trial court committed serious error of law as well as on facts in deciding issues No.1 and 2. There was ample material on the file and the trial court has not at all considered material facts and evidence produced in this connection. It was also contended that the findings recorded by the trial court that the property, being ancestral, the daughters are equally entitled to share, whether they have claimed or not; legally cannot be sustained. It is well settled from catena of judgments of Hon'ble Apex Court that under the law, the property after partition coming in the hands of son looses ancestral character and the same regains character as self-acquired property of the son in whose hands it has fallen. Thus, the judgment and decree of the trial court can not be sustained and deserves to be modified by enhancing the share of the appellant-plaintiff from 1/6th to 1/4th. 5. It was further contended that the trial court has committed illegality in granting the relief not asked for by the respondent daughters and virtually without asking the court ought not to have granted the relief. Those defendants have not turned up in the suit and not participated in the trial. In support of his arguments, the appellant-plaintiff placed reliance on judgment of the Apex Court reported in 2015 CJ (Partition) 441: Prakash & ors. v. Phulavati & ors. and contended that under the Hindu Succession Act, 1956 section 6 (as amended by the Act of 2005) providing for right of daughter in the coparcenary property, the amended provisions can not be given retrospective effect. Rights under the amended provisions are applicable to living daughters as on 09th September 2005 irrespective of when such daughters were born. The partition had taken place before 20.12.2004 and it will remain unaffected. 6. Perused the judgment cited by the learned counsel for the appellant and the pleadings & evidence available on record. 7. In this case, the respondent No.1 while admitting contents of para 2 of the plaint, also contended that he is entitled to 1/4th share in the property. Defendants No.2 to 5 did not appear and therefore, the trial court proceeded ex parte against them. The respondents No.6 & 7 (daughters) did not appear. 7. In this case, the respondent No.1 while admitting contents of para 2 of the plaint, also contended that he is entitled to 1/4th share in the property. Defendants No.2 to 5 did not appear and therefore, the trial court proceeded ex parte against them. The respondents No.6 & 7 (daughters) did not appear. The appellant-plaintiff in his statement before the trial court on affidavit, in para 8 contended that late Shri Kunwar Lal has written one 'tehreer' by which he partitioned the property and gave one share to each of his sons. So far as rights of daughters, it was written in the 'tehreer' that in lieu of their share in the property, cash has been given to them. So-called 'tehreer' was said to be exhibited as Ex.1 but on perusal of the record, the document is found not so exhibited. It was a typed matter on a plain paper and signature of Kunwar Lal is there at the bottom. This so-called partition-deed bears no signature of any witness before whom it was written nor has it been registered nor exhibited. The trial court has rightly observed in its judgment at para 16 that there was no partition of the property between parties and therefore, the defendants No.6 and 7, who are daughters of late Kunwar Lal, are also entitled to their share in the property. 8. The ratio of the judgment in Prakash & ors v. Phulvati & ors. (supra) cited by learned counsel for the appellant is not applicable in the facts and circumstances of the present case. There is no ground for interference in the judgment and decree dated 27.11.2007 passed by the trial court. The appeal is devoid of merits and the same is hereby dismissed.