Vikrama Singh & Ors vs Bhim Shankar Tewari & Ors
2022 Latest Caselaw 1212 Cal

11   15.3.2022
Sc    Ct. no.8
                                    I.A. No. CAN 1 OF 2017
                                 (Old No. CAN 10920 OF 2017)
                                     (Application for injunction)
                                                with
                                       CAN 2 OF 2022
                                                  in
                                     FMA 1394 OF 2018

                                              --------------

Vikrama Singh & Ors.

Vs.

Bhim Shankar Tewari & Ors.

Mr. Aniruddha Chatterjee Mr. Partha Pratim Ray Mr. Shibaji Kumar Das Mr. Sanjay Sadhu Mr. Ahshan Ahmed Ms. Rupsa Sreemani.

...For the Applicant/ Appellant.

Mr. Raja Basu Chowdhury Mr. Rishav Banerjee Ms. Sanjukta Ray.

...For the Respondent Nos. 1 & 2.

By consent of the parties the application being CAN

2 of 2022 has been treated as on day's list.

The parties to the appeal are the descendants of

Sarju Prasad. The appellants are the legal heirs of the

first wife of Sarju Prasad. The parties prima facie are

governed by the Mitakshara School of Hindu Law.

Initially the daughters of the Mitakshara School of Hindu

Law were not considered to be coparceners, however, by

reason of the amendment to the Hindu Succession Act,

1956 in the year 2005, have become entitled to the share

of the unpartitioned portion of the estate of their

ancestors. The appellants alleged that there are

unpartitioned properties and assets and, accordingly,

they are entitled to their share in such properties.

Learned trial Judge, however, seems to have not

taken note of the aforesaid fact and refused to pass an

order of injunction in favour of the appellants after

contested hearing, inter alia, on the ground that the

properties of Sarju Prasad were partitioned in the year

1982 relying on the documents disclosed by the

respondents and further held that the daughters in a

coparcenary has no interest and, accordingly, cannot

claim any partition.

An interlocutory application is required to be

decided on the basis of the affidavit evidence. However,

at the time of considering a claim of a coparcener, the

trial court was required to take into consideration the

amendment made in 2005 and there were not sufficient

materials to show that all properties, left by Suraj Prasad,

were partitioned and, accordingly, the present appellants

may not have any share in the property.

The difficulty, however, arose by reason of the order

passed by the Larger Bench of the Hon'ble Supreme Court

in Vineeta Sharma -vs.- Rakesh Sharma & Ors.

reported in 2020 (9) SCC 1 in which the Hon'ble

Supreme Court has observed that the provision contained

in substituted Section 6 of the Hindu Succession Act,

1956 confers status of coparcener on the daughter born

before or after amendment in the same manner as son

with same rights and liabilities (see paragraph 137 of the

report). The impugned order was passed on 15th

September, 2017. The law at that point of time was not

settled. There were divergent views on the date when the

impugned order was passed. On the date of the order it

was possible for the trial court to exclude the daughters

as coparceners. However, having regard to the fact that

the law has been settled, the impugned order needs to be

revisited as it now gives a right to a daughter to the

coparcenary properties.

In view thereof, there shall be an order of injunction

restraining the respondents from alienating, encumbering

or creating any third party interest in respect of the

properties as on date till the disposal of the suit.

Mr. Raja Basu Chowdhury, learned counsel

appearing on behalf of the respondents has fairly

submitted that on 18th January, 2016 that is during the

pendency of the suit a development agreement alleged to

have been entered into with the developer in respect of

one of the properties. By reason of the judgment of the

Hon'ble Supreme Court, the appellants could have a

claim in the suit to the extent of their share in the

property provided the suit is decreed in favour of the

appellants.

However, having regard to the fact that the said

agreement was implemented and steps have been taken

towards construction of buildings, we direct the

respondents to deposit Rs.2 crore (Rupees two crore) to

the credit of the suit subject to the final adjudication of

the suit. The learned trial judge shall invest the said

amount in a nationalised bank in a short term fixed

deposit yielding highest return.

The owners' allocation under the said agreement

shall not be transferred without leave of the trial court.

We make it clear that we have not restrained

implementation of the development agreement subject to

fulfillment of the aforesaid conditions.

In view of the fact that the defendant nos. 1 and 2

have already filed their written statements, we request the

trial court to pass peremptory direction with regard to

procedural matters in order to make the said suit ready

and dispose of the suit preferably within a period of one

year from the date of framing of the issues subject to the

convenience of the learned court.

In the event the other defendants have not filed

their written statements, the trial court may proceed

against such defendants ex parte.

None of the parties should be allowed to adopt

dilatory tactics to delay the hearing of the suit.

The appeal and the applications are, accordingly,

disposed of. However, there shall be no order as to costs.

Photostat certified copy of this order, if applied for,

be furnished to the parties on usual undertaking.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)