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2017 DIGILAW 60 (GUJ)

Parsottambhai Laljibhai Bhut v. Parvatiben Laljibhai Bhut

2017-01-12

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellant challenging the impugned judgment and order rendered in Regular Civil Appeal No. 94/2013 dated 03.09.2016 confirming the judgment and order rendered in Regular Civil Suit No. 43 of 2005 by the learned Civil Judge, Manavadar dated 30.09.2013 raising substantial questions of law as posed below:- "1. Whether Appellate court has committed an error of law by misreading the provisions of Section 14 of Hindu succession Act, 1956 looking to the facts and circumstances of the present case? 2. Whether Appellate court has committed an error of law by misreading the provisions of Section 8 of Hindu succession Act looking to the facts and circumstances of the present case? 3. Whether Appellate court and trial courts have committed an error of law by holding that the defendant is not entitled to his share in the legacy of deceased Laljibhai Ambavibhai Bhut and the plaintiff is only entitled to the get whole legacy of the deceased Laljibhai Ambavibhai Bhut who was a male hindu died intestate leaving behind 7 legal heirs of first line? 4. Whether trial court has committed an error of law as well as facts of the case by considering the value of suit property @ Rs. 1,000/- whereas the actual value of the property is more than Rs. 50,00,000/-, ousting whereby the pecuniary jurisdiction of trial court" 2. Heard learned advocate, Shri R.V. Sakaria for the appellant. 3. As it transpires from the background of the fact that the respondent-original plaintiff is the widow of Laljibhai Bhut, who was having various parcels of land, which are said to have been distributed amongst the present appellant (son) and other sons as well as the respondent, who are the heirs of Class-I. It is evident from the discussion that after the said land was given according to the share of the appellant, he is said to have sold to the deceased-father and he purchased the same. Therefore, when the father had given his share and again he sold it to the father, he cannot claim it back relying upon the provision of Hindu Succession Act. 4. Therefore, when the father had given his share and again he sold it to the father, he cannot claim it back relying upon the provision of Hindu Succession Act. 4. The submissions which have been made by learned advocate, Shri Sakaria that as the heir of Class-I, he would be entitled to share in the property/land by the father, is required to be considered in background of the facts as the law would be applicable depending upon the facts of the case. The land, which was given to the appellant as per the understanding amongst four sons and wife during his life time, the appellant had got his share and some lands were kept by him for the wife. However as stated about the conduct and attitude of the appellant, he was not settled in life and he is said to have again sold the land to the father. Therefore, the father purchased the land, which was given by him to his son. Therefore now the appellant as a son cannot claim relying upon the provision of Section 8 of the Hindu Succession Act that he is entitled to claim share in the property/land purchased by the father. It is required to be stated that father had purchased from him the same land, which he had allotted and given to the son. However as he could not maintain with his attitude, which is reflected in the judgment of the trial court as well as lower appellate court, the father purchased and gave it to the wife for the maintenance. 5. The provision of Sections 8 and 14 of the Hindu Succession Act would be applicable for the purpose of succession. However in the facts of the case, as per the family arrangement when the land has been distributed to the sons (heirs) and wife during his life time and if one of the sons has given it back by so called purchased by the father, it would not attract the Section 8 of the Hindu Succession Act inasmuch as the person like the appellant having already taken share in the property of the father, cannot again make a claim qua the same property, which is said to have purchased by the father after making payment to him. Though the provision of Section 8 of the Succession Act would make the heirs entitle for share in the property of the father including any property, which he purchases or acquires. However as the situation referred to hereinabove does not give any right to the heirs to claim on the basis of Section 8 of the Hindu Succession Act again and again that too after having taken share in the property when he could not maintain it, he sold it to the father and then again claim share in the said property though he has pocketed the sale consideration. 6. Therefore though learned advocate, Shri Sakaria has referred to the provision of the Hindu Succession Act, particularly, Sections 8 and 14 of the said Act, it can hardly be said to be attracted in background of facts and as discussed above, the appellant cannot claim any right, title, interest in the land. In fact, the trial court has also discussed referring to his conduct and attitude and also the deposition and the averments of the mother, which is quoted in the judgment of the Regular Civil Appeal No. 94/2013 by the lower appellate court in paragraph Nos. 10 and 11. Thus both the Courts below have considered all set of arguments, which were sought to be pressed in service by the appellant and have not accepted the same for the reasons, which have been recorded. 7. The discussion has been made with regard to the deposition of the appellant at Exh. 53, which has also been considered and discussed again referring to earlier background of the Civil Suit Nos. 116/2001 and 163/2001. This again reflects and conduct and attitude. 8. Therefore, it is required to be considered whether any substantial question of law is involved, which would call for any interference in exercise of discretion under Section 100 of the Civil Procedure Code in the Second Appeal. The concurrent finding of facts given by both the Court below with detailed reasons on appreciation of material and evidence does not call for any interference and substantial question of law, which is said to have been posed, can hardly be said to be any question of law involved in the matter applicable in the background of the facts. 9. The concurrent finding of facts given by both the Court below with detailed reasons on appreciation of material and evidence does not call for any interference and substantial question of law, which is said to have been posed, can hardly be said to be any question of law involved in the matter applicable in the background of the facts. 9. It is well settled that after the amendment in the Civil Procedure Code, the Hon'ble Apex Court has expressed word of caution and has laid down broad guidelines with regard to the scope of exercise of discretion disturbing the concurrent finding of facts under Section 100 of the Civil Procedure Code. It is also well settled that unless there is any substantial question of law, which can be said to have been involved, normally the High Court would decline to exercise the discretion under Section 100 of the Civil Procedure Code in Second Appeal. The Hon'ble Apex Court in a judgment in case of Nagarpalika Thakurdwara v. Khalil Ahmed & Ors., reported in AIR 2016 SC 4477 , has made the observations as to what can be said to be substantial question of law. It is in this background, this Court does not think it fit to entertain the present appeal as no question of law much less any substantial question of law can be said to have been involved, which would call for any interference with the concurrent finding of facts. 10. The present Second Appeal deserves to be dismissed and accordingly stands dismissed. Notice is discharged.