Kali Bai vs Narottam
2021 Latest Caselaw 311 Chatt

                                1

                                                                NAFR
        HIGH COURT OF CHHATTISGARH AT BILASPUR
               Second Appeal No. 292 of 2006


  Kali Bai D/o Mahaveer, Aged about 62 years, By
  Caste     Panika,    R/o     Village     Fulwari,     P.O.   and
  Tahsil Lormi, Distt. Bilaspur, Chhattisgarh.

                                      ­­­Appellant/Plaintiff

                             Versus

1. Narottam, Aged about 54 years, S/o Adhari, Caste
  Panika,    R/o     Village    Fulwari,      P.O.    and   Tahsil
  Lormi, Distt. Bilaspur, Chhattisgarh.

2. Narayan, Aged about 53 years, S/o Adhari, Caste
  Panika,    R/o     Village    Fulwari,      P.O.    and   Tahsil
  Lormi, Distt. Bilaspur, Chhattisgarh.

3. Munni Bai, Aged about 56 years, D/o Adhari, Caste
  Panika,    R/o     Village    Fulwari,      P.O.    and   Tahsil
  Lormi, Distt. Bilaspur, Chhattisgarh.

4. Chhunni Bai, D/o Adhari (died) thr. Lrs. :­

  A. Bisahu Ram s/o Gajdhar, Aged about 58 years,
  R/o   Village      Patharri,      Post   Office     and   Police
  Station     Lormi,    Tahsil      Lormi,    Distt.      Mungeli,
  Chhattisgarh.

  B. Smt. Kala Bai W/o Mahesh Ram, Aged about 35
  years,     R/o   Bhedagarh,       Police    Station       Kukdur,
  Tahsil Pandaria, Distt. Kabirdham, Chhattisgarh.

  C. Smt.     Jala    Bai W/o       Tulsiram,    Aged about     30
  years,    R/o    Kodwa­Godan,      Police     Station     Kukdur,
  Tahsil Pandaria, Distt. Kabirdham, Chhattisgarh.

  D. Smt. Jal Bai W/o Anil Kumar, Aged about 28
  years,    R/o    Village     Singhanpuri,     Police      Station
                                      2

    Chilfi,           Tahsil         Lormi,        Distt.        Mungeli,
    Chhattisgarh.

    E.   Ku.Mandakini          D/o    Bisahuram,        Aged   about    18
    years,      R/o    Village       Patharri,        Post   Office     and
    Police      Station        Lormi,        Tahsil     Lormi,       Distt.
    Mungeli, Chhattisgarh.

    F.   Arun    Kumar     S/o       Bisahu    Ram,     Aged   about    15
    years, minor through legal guardian father Bisahu
    Ram, R/o Village Patharri, Post Office and Police
    Station      Lormi,        Tahsil    Lormi,       Distt.     Mungeli,
    Chhattisgarh.

  5. Mantora     Bai,     Aged       about    45   years,      D/o     Late
    Adhari, Caste Panika, R/o Village Fulwari, P.O.
    and Tahsil Lormi, Distt. Bilaspur, Chhattisgarh.

  6. Mohan S/o Ramadhar (died) through Lrs. :­

    (I) Dasari Bai W/o Mohanlal (died and deleted).

    (ii). Bhuvan S/o Mohan Lal, Aged about 47 years.

    (iii).      Deelesh    S/o       Mohan     Lal,    Aged    about     42
    years.

    All R/o Village Fulwari, Post and Tahsil Lormi,
    Distt. Mungeli, Chhattisgarh.

  7. State of Chhattisgarh, acting through Collector,
    Bilaspur, Chhattisgarh.

                                      ­­­ Respondents/Defendants

For Appellant :­ Mr. Bharat Rajput, Advocate For State :­ Mr. Ravi Bhagat, Dy. G.A.

Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board

15/06/2021

1. This second appeal preferred by the

appellant/plaintiff was admitted for hearing on

06/09/2006 by formulating the following two

substantial question of law :­

"(A) Whether the learned trial Court as well as the appellate court have given a proper interpretation to the provisions of Section 14 of the Hindu Succession Act ? (B) Whether the findings of both the Courts below are justified that since the death of original owner Ramnath took place before coming into force of the Hindu Succession Act, 1956, the appellant/plaintiff can not be treated as entitled to any share therein ?"

[For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. The following genealogical tree will demonstrate

the relationship between the parties :­

Ramnath

Itwari Ramadheen Ramprasad (died) (died) (died)

Devlal Mahaveer (died issueless) Adhari Mohan (died) (died) (D­6) Kalibai Narottam Narayan Munni Chunni Mantora (Plaintiff) (D­1) (D­2) (D­3) (D­4) (D­5)

3. The suit property admeasuring 9.02 acres

situated at Village Fulwari, Tahsil Lormi,

District Mungeli was originally held by one

Ramnath. He had three sons namely Itwari,

Ramadheen and Ramprasad. Itwari had a son namely

Devlal, who died issueless. Ramadheen had two

sons namely Adhari and Mohan. Adhari died

leaving behind his sons and daughters who are

defendants No. 1 to 5 and Mohan is defendant No.

6. Similarly, Ramprasad had one son Mahaveer,

who was assassinated in the year 1946 and left

behind his sole daughter namely Kalibai, who is

the plaintiff.

4. Plaintiff - Kalibai filed an application under

Section 178 of Chhattisgarh Land Revenue Code,

1959 for partition of the suit property as after

the death of Itwari, the suit property was held

jointly by defendants' grandfather Ramadheen as

well as plaintiff's grandfather Ramprasad. The

tahsildar by order dated 15/01/1991 directed for

partition of the suit property in three parts

and allotted 1/3rd share of the suit property in

favour of the plaintiff. Kalibai then preferred

an appeal before the S.D.O. stating that since

Devlal i.e. son of Itwari had died issueless,

therefore, plaintiff being the successors­in­

interest of Ramprasad as well as defendants

being successors­in­interest of Ramadheen, both

will be entitled for ½ share in the suit

property, which the S.D.O. also did not accept

and dismissed the appeal on 30/05/1991 against

which Kalibai preferred a revision before the

Commissioner, who by order dated 01/01/1996 (Ex.

P/5) reserved the liberty in favour of Kalibai

to raise the question of title before the

jurisdictional Court.

5. Thereafter, a civil suit for declaration of

title and partition was filed by the plaintiff -

Kalibai claiming ½ share in the suit property

stating that the suit property belonged to her

great­grandfather Ramnath, who had three sons

namely Itwari, Ramadheen and Ramprasad and since

Itwari's son namely Devlal died issueless and

plaintiff is the sole surviving heir of

Ramprasad and defendants are successors­in­

interest of Ramadheen, therefore, she

(plaintiff) as well as the defendants, both are

entitled for ½ share in the suit property.

6. Resisting the suit, defendants filed their

written statement wherein they have admitted

that the suit property was held by their great­

grandfather Ramnath, but they took up a plea of

partition of the suit property amongst them and

prayed for the suit to be dismissed.

7. Learned trial Court, upon appreciation of oral

and documentary evidence on record, dismissed

the suit vide its judgment and decree dated

04/11/2004 dismissed the suit finding no merit,

which was affirmed by the first appellate Court

in the appeal preferred by the

appellant/plaintiff. Feeling aggrieved by the

impugned judgment and decree dated 19/04/2006

passed by the first appellate Court, the instant

second appeal under Section 100 of CPC has been

preferred by the appellant/plaintiff in which

two substantial questions have been formulated

and set out in the opening paragraph of this

judgment.

8. Mr. Bharat Rajput, learned counsel for the

appellant/plaintiff, would submit it is not in

dispute that the suit property was held by

Ramnath and he had three sons namely Itwari,

Ramadheen and Ramprasad. It is also not in

dispute that Itwari died issueless and plaintiff

is the sole surviving heir of Ramprasad and

defendants are successors­in­interest of

Ramadheen. As such, both the plaintiff as well

as defendants will take ½ share in the suit

property, but both the Courts below have

committed grave legal error in dismissing the

suit and not granting ½ share in the suit

property in favour of the plaintiff. Therefore,

the appeal be allowed by setting aside the

judgment and decree passed by both the Courts

below.

9. None appeared for respondents/defendants No. 1

to 6, though served.

10. I have heard learned counsel for the plaintiff,

considered his submission and went through the

record with utmost circumspection.

11. Plaintiff claimed that the suit property

admeasuring 9.02 acres was held by her great­

grandfather Ramnath which was also admitted by

the defendants in their written statement. It is

also not in dispute that Ramnath had three sons

namely Itwari, Ramadheen and Ramprasad; and that

Itwari's only son namely Devlal died issueless

and defendants are the successors­in­interest of

Ramadheen as well as plaintiff is the sole

surviving heir of the only son of Ramprasad

namely Mahaveer, who was assassinated in the

year 1946, as the said facts have been admitted

by Mohanlal (D.W. 1) in his cross­examination

before the trial Court. Not only this, in a

partition proceeding initiated by the plaintiff

under Section 178 of the Land Revenue Code, the

suit property is shown to be originally held by

Ramnath. The only dispute is whether plaintiff

is entitled for ½ share in the suit property as

claimed by her or for 1/3rd share in the suit

property as held by the revenue authorities.

Since, 1/3rd share was allotted to the plaintiff

by the S.D.O. and the question of title was

raised by the Commissioner, therefore, plaintiff

filed the suit for declaration of title and

partition claiming ½ share in the suit property.

12. The only question for consideration herein is

whether plaintiff is entitled for 1/3rd share in

the suit property as held by the revenue

authorities in the partition proceedings

initiated by the plaintiff or if she is entitled

for ½ share in the suit property as claimed by

her.

13. Plaintiff Kalibai herself has been examined as

P.W. 1 and is her cross­examination she has

clearly stated that she is entitled for ½ share

in the suit property as the suit property was

originally held by her great­grandfather Ramnath

who had three sons namely Itwari, Ramadheen and

Ramprasad. Since Itwari's son namely Devlal died

issueless and since defendants are the

successors­in­interest of Ramadheen and

plaintiff is the only successor­in­interest of

Ramprasad, therefore, she as well as defendants,

both will get ½ share in the suit property. She

has refuted the defence taken by the defendants

and stated that no partition took place between

the three brothers i.e. Itwari, Ramadheen and

Ramprasad with regard to the suit property.

Moreover, nothing has been extracted to

establish the fact of partition. Tangu (P.W. 2)

has also been examined on behalf of the

plaintiff and he has also stated on oath that

Itwari, Ramadheen and Ramprasad were brothers

and Itwari's son died issueless and plaintiff is

the sole surviving heir of Ramadheen and

defendants are the successors­in­interest of

Ramprasad.

14. On behalf of the defendants, defendant No. 6

namely Mohanlal (D.W. 1) has been examined who

has also clearly admitted in paragraph 3 of his

cross­examination that the suit property was

held by Ramnath and out of his three sons,

Itwari's son died issueless, defendants are the

successors­in­interest of Ramadheen and

plaintiff is the daughter of Mahaveer, who was

the son of Ramprasad. Though Mohanlal (D.W. 1)

refuted the fact that plaintiff and defendants

both will get ½ share in the suit property.

15. In support of her claim, plaintiff has filed the

document Exhibit P/1 which is a copy of Adhikar

Abhilekh which is maintained on the basis of

Jamabandi of 1954­55 wherein plaintiff's name is

also recorded along with the names of the

defendants. Similarly, she has also filed

Exhibits P/3 and P/4 which are copies of Exhibit

P/1 and the name of the plaintiff is duly been

recorded along with the defendants and Exhibit

P/5 is the order of the Commissioner in which

she has been held entitled for 1/3rd share in the

suit property.

16. Thus, it is established on record that suit

property was originally held by one Ramnath and

it was succeeded by his three sons namely

Itwari, Ramadheen and Ramprasad. Since Itwari

died issueless and defendants are the

successors­in­interest of Ramadheen and

plaintiff is the only daughter of Ramprasad's

son namely Mahaveer, who was assassinated in the

year 1946, both plaintiff as well as defendants

will get ½ share in the suit property, being the

only surviving heirs of Ramnath's sons Ramprasad

and Ramadheen which has been duly established

from the oral and documentary evidence on

record. In view of the above­stated findings,

the conclusion/findings of the two Courts below

based on Section 14 of Hindu Succession Act,

1956 is erroneous. As such, both the Courts

below have committed grave legal error in

dismissing the suit of the plaintiff and not

granting ½ share in the suit property to the

plaintiff.

17. In view of the aforesaid finding recorded

herein­above, the judgment and decree passed by

both the Courts below are hereby set aside by

answering the substantial questions of law in

favour of the plaintiff and it is held that

plaintiff is entitled to get ½ share in the suit

property as shown in Schedule 'A' appended with

the plaint and is entitled for separate

possession of her share in the suit property in

the partition proceedings to be done by the

Collector/any other officer authorized by him on

his behalf in accordance with law.

18. It is ordered and decreed that plaintiff will be

entitled for ½ (one­half) share in the suit

property shown in Schedule 'A' of the plaint and

she will be entitled for separate possession of

the said property in the partition proceeding

conducted by the Collector/any other Revenue

officer authorized by him in accordance with law

on his behalf.

19. Accordingly, the second appeal is allowed to the

extent indicated herein­above. No cost(s).

20. Decree be drawn­up accordingly and Schedule 'A'

appended with the plaint be made part of the

decree.

Sd/­ (Sanjay K. Agrawal) Judge

Harneet