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2019 DIGILAW 2215 (RAJ)

Deepak Singh v. Radhey Shyam

2019-08-19

PRAKASH GUPTA

body2019
JUDGMENT Prakash Gupta, J. - This civil first appeal has been filed against the judgment dated 26.09.2018 passed by Additional District Judge No.2, Kota whereby the suit filed by the appellant-plaintiff (hereinafter referred to as 'the plaintiff') for partition, declaration and permanent injunction has been dismissed. 2. Facts of the case are that the plaintiff filed a suit for partition, declaration and permanent injunction against the respondents-defendants (hereinafter referred to as 'the defendants'). During the pendency of the suit, on 11.1.2018 following issue was framed by the trial Court as a preliminary issue:- 3. Burden to prove the said issue was put on the defendants. 4. On the aforesaid issue, it was submitted by the defendants before the Trial Court that the plaintiff's father was impleaded as defendant No.2 in the suit and after the death of plaintiff's grandfather late Jasraj Singh, his daughters were surviving. In this view of the matter, provisions of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act of 1956') were applicable in the instant case and therefore, the property as mentioned in the plaint could not be said to be the joint Hindu family property. Thus, the plaintiff's father Mukut Singh being alive, the plaintiff has no legal right to file the suit and the suit filed by him is barred by law. 5. The learned trial Court vide its judgment dated 26.09.2018 decided the aforesaid preliminary issue in favour of the defendants and on that basis, dismissed the suit filed by the plaintiff as not maintainable. 6. Heard learned counsel for the plaintiff and carefully perused the material available on record. 7. Learned counsel for the plaintiff submitted that Late Nand Singh was the great grandfather of plaintiff and Late Smt. Pushpkanwar Bai was the great grandmother of the plaintiff. Smt. Pushpakanwar Bai was the absolute owner of the suit property as mentioned in para 2 of the plaint, whereas the property mentioned in para 4, which is agricultural land, originally belonged to late Shri Nand Singh and after his death, the property was recorded in the name of late Jasraj Singh in the revenue records and thus all the suit properties were ancestral properties as all the aforesaid three persons died intestate. The plaintiff in the suit not only prayed for partition of the suit properties but also prayed for declaration to the effect that the Will dated 4.10.1994 purportedly executed by late Jasraj Singh be declared null and void qua the plaintiff. He has further submitted that once the plaintiff specifically prayed for declaration and questioned the execution of purported Will dated 4.10.2014, the trial court ought to have framed the relevant issue in this regard on the basis of rival submissions of the parties but the learned trial court acted in a very narrow compass and framed only one issue with regard to legal right of the plaintiff to file the suit. Learned counsel also submitted that the court below while deciding the preliminary issue failed to appreciate that the plaintiff instituted the suit for partition in respect of suit properties, declaration in respect of alleged Will dated 4.10.1994, whereas Late Jasraj Singh expired on 6.10.1994 and thus the alleged Will was executed just 2 days back i.e. on 4.10.1994. Late Jasraj expired after the birth of plaintiff and thus as per provisions of Section 6 of the Act of 1956, the plaintiff immediately on his birth, acquired and inherited all successive rights in the ancestral suit property being a coparcener. He has further submitted that the grandson can maintain the suit for partition or any other nature during life time of his father in respect of ancestral land, if his birth was prior to the death of his grand father and his rights are governed by the provisions of Section 6 of the Act of 1956 and not by the provisions of Section 8 of the Act of 1956. He has further submitted that the plaintiff did not claim any right in respect of any property of his father or self-acquired property of his father against his brother or sister, rather the suit was filed against all the legal successors of late Nand Singh, who acquired their successor rights in the suit properties. He has further submitted that the impugned judgment is against the provisions of Order 14 Rule 1(5) CPC as the Court below is required to frame the issues after reading the plaint and the written statement. However, the learned Court below adopted a casual approach in deciding the suit by framing the preliminary issue, which was not at all relevant and germane. However, the learned Court below adopted a casual approach in deciding the suit by framing the preliminary issue, which was not at all relevant and germane. Hence, the impugned judgment be quashed and set-aside. 8. Heard leaned counsel for the plaintiff and carefully perused the relevant material on record. 9. Before proceeding further in the matter, it would be relevant to have a look on the relevant provisions of the Act of 1956. Section 4 4.Overriding effect of Act-Save as otherwise expressly provided in this Act,- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindu in so far as it is inconsistent with any of the provisions contained in this Act." Section 6 6.Devolution of interest in coparcenary property:- When a male Hindu dies after the commencement of this Act, having at the time of his death and interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class-I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be, under this Act and not by survivorship. Explanation 1 For the purposes of this 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 2 Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. Section 8 8. Explanation 2 Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. Section 8 8. General Rules of succession in the case of males-The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter:- (a) Firstly, upon the heirs, being the relatives specified in Class 1 of the Schedule; (b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule: (c) 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. Section 19 If two or more heirs succeed together to the property of an intestate, they shall take the property- (a) save as otherwise expressly provided in this Act, per capita and not per stripes; (b) as tenants-in-common and not as joint tenants. 10. A conjoint reading of proviso to Section 6 of the Act of 1956, Section 8, as also Section 19 of the Act of 1956 makes it clear that where the deceased leaves behind a surviving female relative specified in Class-I of the Schedule or a male relative specified in that class, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship and if there are two or more heirs together to the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants. 11. While adverting to the facts of the case, it is noticed that the grand father of the plaintiff died on 6.10.1994 leaving behind his daughters. In this view of the matter, disputed property would devolve according to the provisions of Section 8 of the Act of 1956 and not in terms of the provisions of Section 6 of the Act of 1956. 12. In this view of the matter, disputed property would devolve according to the provisions of Section 8 of the Act of 1956 and not in terms of the provisions of Section 6 of the Act of 1956. 12. Hon'ble Apex Court in the case of Uttam Versus Saubhag Singh and others, (2016) 4 SCC 68 held that when male Hindu, having interest in Mitakshara coparcenary property dies intestate after commencement of Hindu Succession Act, leaving behind a Class I female heir and sons, then by operation of proviso to Section 6, deceased's interest in coparcenary property would devolve by intestate succession under Section 8 and not by survivorship under Section 6. After devolution of joint family property as per Section 8 of the Hindu Succession Act upon death of male Hindu intestate, property would cease to be joint family property and said female heir and other coparceners succeeding to the same would hold their respective share in property as tenants-incommon and not as joint tenants. 13. In the case of Prakash and others Versus Phulavati and others, (2016) 2 SCC 36 , it was held by the Apex Court that Section 6 of the Act of 1956 applies only when both coparcener and his daughter are alive on the date of commencement of the Amendment Act i.e. 9.9.2005, irrespective of date of birth of daughter and coparcener who died thereafter. 14. In this view of the matter, I am in agreement with the finding arrived at by the trial court in dismissing the plaintiff's suit. There is no reason to take a different view than the view taken by the learned Trial Court. Thus the appeal filed by the plaintiff fails and the same is hereby dismissed.