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2020 DIGILAW 515 (RAJ)

Babu Lal v. Para Devi

2020-03-24

PRAKASH GUPTA

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JUDGMENT Prakash Gupta, J. - The present writ petition has been filed under Article 227 of the Constitution of India by the petitioners-plaintiffs (hereinafter referred to as 'the plaintiffs') against the order dated 27.11.2019 passed by the Additional District & Session Judge No. 19, Jaipur Metropolitan, (Head Quarter at Sanganer) in Civil Misc. Appeal no. 22/2019, whereby the appeal filed by the respondents-defendants (hereinafter referred to as 'the defendants') has been partly allowed modifying the order dated 23.4.2019 passed by the Trial Court and both the parties have been directed to maintain status-quo with regard to the site and record over disputed 1/5th portion of 1/3rd share of late Ananda in the suit property. 2. Facts of the case are that the plaintiffs filed a suit for declaration and permanent injunction against the defendants alongwith an application for temporary injunction under Order 39 Rule 1 and 2 CPC. The Trial Court vide its order dated 23.4.2019 allowed the application for temporary injunction filed by the plaintiffs and directed both the parties to maintain status-quo with regard to site and record over the suit property, as described in para no. 17 of the T.I. application. 3. Aggrieved thereby, the defendants filed a Civil Misc. Appeal before the Appellate Court. The Appellate Court vide its order dated 27.11.2019 partly allowed the appeal modifying the order dated 23.4.2019 passed by the Trial Court. 4. Learned counsel for the plaintiffs submits that both the parties are natural successors and legal representatives of late Shri Kana. Late Sh. Kana was having three children, namely Dhanna, Ananda and Murli. After the death of Kana, his sons namely Dhanna, Ananda and Murli were recorded as owners and tenants of revenue land situated at village Jaisinghpura @ Jotdawala, Tehsil-Sanganer, Distt.- Jaipur and, each of them are entitled to have 1/3 share therein. It has further been submitted that Dhanna died in the year of 1992 leaving behind nine children. Ananda was married to Smt. Suja Devi and out of their wedlock, 4 daughters were born namely, Smt. Para Devi, Smt. Kalli Devi, Smt. Prem Devi and Smt. Kamli Devi. Smt. Suja Devi died on 19.04.1998 and Ananda died on 28.11.1998. During their life time, Ananda and Suja Devi adopted Suja Ram S/o Dhanna in the year of 1962. Ananda was married to Smt. Suja Devi and out of their wedlock, 4 daughters were born namely, Smt. Para Devi, Smt. Kalli Devi, Smt. Prem Devi and Smt. Kamli Devi. Smt. Suja Devi died on 19.04.1998 and Ananda died on 28.11.1998. During their life time, Ananda and Suja Devi adopted Suja Ram S/o Dhanna in the year of 1962. After adoption, Suja Ram started living with his adoptive parents and his upbringing and marriage was solemnized by his adoptive parents. It was further averred that adoption deed was also executed for the adoption of Sh. Suja Ram but same was destroyed in fire. It was also averred that due to love and affection, respondent Prabhu also used to come and stay with Anand and Ananda was also having affection with Prabhu and treated him like his own son. Due to lack of legal knowledge, Ananda also adopted Prabhu but neither any ceremony was solemnized nor any adoption deed was executed. He further submits that Prabhu was also shown as adoptive son of Ananda in record but as per law, a male person can not adopt two sons in his life and due to this reason Prabhu cannot be treated as adoptive son of late Sh. Ananda. Suja Ram expired on 21.4.2001. In various documents, name of late Suja Ram was shown as son of late Ananda. It is further submitted that due to price escalation and greed, the daughters of late Ananda tried to get the mutation opened in their name and alleged that late Suja Ram is not the adoptive son of late Ananda. 5. Learned counsel further submits that an amendment was made to Section 6 of the Hindu Succession Act, 1986 by way of Amendment Act, 2005, which provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. In this view of the matter, before this amendment if parental property had been vested in any male member of Hindu family, then the same cannot be challenged. In this view of the matter, before this amendment if parental property had been vested in any male member of Hindu family, then the same cannot be challenged. He further submits that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara Law shall be devolved by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided accordingly, but if the property had been vested prior to amendment, then daughters have no right in the coparcenary property like son. However, the learned appellate court has utterly failed to consider this aspect of the matter and directed to maintain status-quo over 1/5th portion of 1/3rd property of late Ananda. 6. Per Contra, learned counsel for the defendants supported the impugned order. In support of his contentions, he has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Danamma Versus Amar and others reported in 2018 (1) UC 627 . 7. Head. Considered. 8. It is admitted fact that Ananda and Suja Devi died leaving behind four daughters. The main dispute between the parties was about the adoption of Suja Ram by late Ananda, which could have been decided at the time of final adjudication of the suit. The appellate court observed that at the interim stage, it could not have been denied that Ananda's daughters were having share in the suit property nor was it averred on behalf of the plaintiffs that Ananda's daughters had relinquished their right in the suit property in favour of Suja Ram. In this view of the matter, the learned Appellate Court rightly observed that the disputed property was 1/5th part of 1/3rd share of Anand, the issue with regard to which was to be decided finally at the time of final adjudication of the suit. The appellate court further observed that if the aforesaid suit property is transferred, there would be multiplicity of litigation between the parties. 9. A Coordinate Bench of this Court in the case of Peer Gulam Naseer Versus Peer Gulam Jelanee reported in RLR 1988 (2) page 871 has held that serious questions raised in the case can be finally decided only after parties lead evidence. 10. 9. A Coordinate Bench of this Court in the case of Peer Gulam Naseer Versus Peer Gulam Jelanee reported in RLR 1988 (2) page 871 has held that serious questions raised in the case can be finally decided only after parties lead evidence. 10. A Coordinate Bench of this Court in the case of M/s. Toyal Bros. Versus Gram Panchayat Chichorwari, reported in RLR 1988 (1) 850 , in para 6 of its judgment observed as under: "Both the courts below held that the plaintiff failed to make out a prima-facie case in his favour. The approach is wholly erroneous and unsustainable. There is no magic in the phrase "Prima-facie case". What is implied by the phrase prima-facie case is that there should be serious question to be tried in the suit and that on the facts before the Court, it cannot be said that the case based on those facts is wholly untenable and not maintainable. Prima-facie case only means a substantial question raised bonafide which at the first sight needs investigation and inquiry." 11. Hon'ble Supreme Court in the case of Danamma Versus Amar and Ors. (supra) in para 24 of its judgment observed as under: "Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The Section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore, the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s. (1)(a) and (b)." 12. This writ petition has been filed under Article 227 of the Constitution of India. The power under Article 227 of the Constitution is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not the situation here in this case. 13. In view of above, the order passed by the Appellate Court is not found to be arbitrary, perverse and therefore does not call for any interference by this Court. 14. For the aforesaid reason, the writ petition fails and the same is dismissed. 15. Consequent upon the dismissal of the writ petition, all pending applications stand disposed of accordingly.