Gujarat High Court
Mansukhbhai Laljibhai Kalriya vs Shardaben Laljibhai Kalariya on 1 May, 2025
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C/SA/559/2022 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 559 of 2022
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MANSUKHBHAI LALJIBHAI KALRIYA
Versus
SHARDABEN LALJIBHAI KALARIYA & ORS.
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Appearance:
HARSHADKUMAR D PANCHAL(9015) for the Appellant(s) No. 1
MR SHAIVAL M PATEL(9950) for the Appellant(s) No. 1
SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 1
YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/05/2025
ORAL ORDER
1. The present Second Appeal has been filed under the provisions of
Section 100 of the Code of Civil Procedure, 1973 being aggrieved and
dissatisfied with the judgment and order passed by the Appellate
Court i.e. 2nd Additional District Judge, Rajkot @ Dhoraji on
06.10.2018 passed in Regular Civil Appeal No.01 of 2018 whereby the
judgment and decree dated 06.12.2017 passed by the trial Court i.e.
Principal Civil Judge, Upleta below Exh.89 in Regular Civil Suit
No.73 of 2012 has been quashed and set aside by the appellate Court.
Hence, the present Second Appeal is filed.
2. Brief facts giving rise to filing of the present appeal are as under:-
2.1 The suit property belonging to Laljibhai Manjibhai Kalaria, who
died on 13.02.1994. Wife of Lalji Kalaria viz. Jivtiben pre-deceased
him on 10.11.1972. Laljibhai Kalaria and Jivtiben had four children
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i.e. (i) Shardaben Laljibhai Kalaria, (ii) Hansaben Laljibhai Kalaria,
(iii) Mansukhbhai Laljibhai Kalaria and (iv) Hashmukhbhai
Laljibhai Kalaria.
2.2 Out of the four children, Hansaben expired on 05.04.2007 and the
children of Hansaben Laljibhai Kalaria are the plaintiff nos.2.1 and
2.2 in the suit being Regular Civil Suit No.73 of 2012. Hashmukhbhai
Kalaria, who died on 24.06.2008 was unmarried and did not have any
child.
2.3 The plaintiff i.e. Shardaben Kalaria and legal heirs of Hansaben
Kalaria filed Regular Civil Suit No.73 of 2012 with respect to portion
of the property that belonging to Hashmukhbhai Laljibhai Kalaria. It
is the case of the plaintiffs in the said suit, that after death of
Hashmukhbhai Kalaria on 24.06.2008, the present defendants have
got their name in the revenue record by Entry No.10262 dated
20.01.2009 and has stated that on the death of Hashmukhbhai
Kalaria, present defendant has become exclusive owner of the suit
premises and, therefore, the plaintiffs filed suit for declaration with
respect to share that belonging to Hashmukhbhai Kalaria for the
portion that came into share of Hashmukhbhai Kalaria. The trial
Court framed issues vide Exh.20 which are as under:
"(1) Whether plaintiffs prove that the suit property is
ancestral property ? [ In affirmative ]
(2) Whether plaintiffs prove that they have share in suit
property? [ In affirmative ]
(3) Whether plaintiffs prove that the plaintiffs are having
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right to know the account in respect to income through
the property? [ In negative ]
(4) Whether the defendant proves that suit filed by plaintiff is
barred by law of limitation ? [ In negative ]
(5) Whether defendant proves that suit filed by plaintiff
suffers from mis-joinder of party ? [ In negative ]
(6) Whether the plaintiff is entitled for relief as prayed for in
the suit?
(7) What decree and order ?
2.4 After the trial, trial Court came to a finding that the plaintiffs have
proved that suit property is ancestral property. The trial Court also
came to the conclusion that plaintiffs have share in the suit premises,
the defendant was not able to prove that the suit is not within the
period of limitation but the said suit of the plaintiff was dismissed
only on the ground that as the paternal aunt i.e. sister of late
Laljibhai Kalaria was not joined in the suit proceedings, the suit was
dismissed.
2.5 Aggrieved by the said judgment and decree, the plaintiffs filed
Regular Civil Appeal No.1 of 2018 and after re-appreciating the
evidence and the findings given by the trial Court, the said appeal was
allowed and the judgment and decree passed by the trial Court was
quashed and set aside and the trial Court held that plaintiff no.1 and
defendant have ½ share in the property and held that plaintiff no.2 is share in the property and held that plaintiff no.2 is
not classified in Class-II of the Hindu Succession Act and, therefore
are not entitled for any share in the premises. The said portion of not
considering share of plaintiff no.2 has not been challenged by
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plaintiff no.2 by way of cross-objection and, therefore, present
Second Appeal is with respect to the judgment and order passed by
the appellate Court whereby the judgment and decree of trial Court
in Regular Civil Suit No.73 of 2012 has been quashed and set aside.
3.1 Learned advocate for the defendants has mainly argued that plaintiff
did not have any right in the property as earlier also the plaintiff had
relinquished right with respect to the suit property.
3.2 Learned advocate for the defendants has stated that the appellate
Court could not have quashed and set aside the judgment and decree
passed by the trial Court, as trial Court has rightly held that as
parental aunt i.e. sister of late Laljibhai Kalaria was not joined in the
said proceedings the suit could not proceed as plaintiff has filed suit
for declaration and for partition and unless and until all the owners
of suit property are joined, the suit could not be entertained and
partition could not be affected.
3.3 Moreover it has been argued that the plaintiff have already
relinquished their right in the suit property in the year 1994 and,
therefore, plaintiff could not have claimed any right in the suit
property on the death of Hashmukhbhai Kalaria who expired in the
year 2009. In view of the said matter, all the suggested issue that have
been formulated in memo of appeal are required to be admitted.
4.1 Per contra, learned advocate for the plaintiff has mainly argued that
entire suit that has been filed by the plaintiff is based only with
respect to share of Hashmukhbhai Kalaria and the plaintiff being
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sister of Hashmukhbhai, is a relative as specified in Class-II of
Schedule of Hindu Succession Act, 1956.
4.2 It has been argued for the plaintiff that late Hashmukhbhai died in
the year 2009 and was unmarried and there are no heirs in Class-I of
Hindu Succession Act and, therefore, the plaintiff no.1 and the
defendants both fall under Class-II of the Hindu Succession Act and,
therefore, as Hashmukhbhai died intestate the plaintiff and defendant
will have a share in the property that belonged to late
Hashmukhbhai.
4.3 It has been argued that after death of Laljibhai, Hashmukhbhai had
right in the property and the plaintiffs are claiming the right which
Hashmukhbhai had in the property. In view of the said fact, the
appellate Court has after re-appreciating the evidence has rightly
decided the said first appeal. Moreover, parental aunt i.e. sister of
late Laljibhai Kalaria fall as heirs of Class-II under Hindu Succession
Act and the suit was filed with respect to share of Hashmukhbhai, all
the legal heirs fall in Class-II were joined as party defendants and,
therefore, all necessary and proper parties were joined in the said suit
and appellate Court has rightly decided the said appeal.
4.4 Moreover, the findings arrived at by the trial Court with respect to
suit property being ancestral property and that plaintiffs having share
in the property having not been challenged by the present defendant,
said finding is confirmed and, therefore, the defendants cannot argue
that plaintiff does not have any right, title and that the suit property
is not ancestral property. It has been argued that trial Court
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dismissed the suit only on the ground that plaint is barred on the
ground of non-joinder of party and, therefore, there are no
substantial questions of law involved in the present appeal and
substantial question of law which have been suggested in the memo of
appeal are on the factual aspect and, therefore, Second Appeal is
required to be dismissed.
5. Having heard learned advocates for the parties and on perusing
judgment and decree passed by both the Courts below following are
the admitted position.
(i) Laljibhai Kalaria died on 13.02.1994.
(ii) His wife pre-deceased Laljibhai Kalaria on 10.11.1972.
(iii) Laljibhai Kalaria and Jivtiben had four children.
(iv) Shardaben and Hansaben and Hansaben died on 05.04.2007.
(v) Hashmukhbhai was unmarried and did not have any children
and he died intestate
(vi) The present suit is filed with respect to share of Hashmukhbhai
and the admitted position is that Hashmukhbhai name was
there as owner in the suit property.
5.1 In view of the said fact, question that arises is that after death of
Hashmukhbhai, the present plaintiff and defendant being the sister
and brothers of Hashmukhbhai have right and the property as they
fall as heirs in Class-II of Schedule of Hindu Succession Act, 1956.
5.2 The fact also remains that the trial Court has already held that suit
property is ancestral property and that plaintiff is entitled to the share
of said property and the said findings has not been challenged by
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defendant by filing cross-objections or separate appeal before the first
appellate Court and, therefore, said findings has attained finality. The
only factor that the trial Court has held against the plaintiff was that
parental aunt i.e. sisters were not joined in the proceedings before the
trial Court but the appellate Court has rightly come to conclusion
that parental aunt was not necessary party as suit was filed with
respect to share of Hashmukhbhai in the suit property. As the said
parental aunt will not fall under Class-I and Class-II of Hindu
Succession Act with respect to the property of late Hashmukhbhai
Kalaria. Plaintiff no.1 and 2 and the defendants are only surviving
legal heirs both in Class-II as per of Schedule of Hindu Succession
Act, the appellate Court has rightly held that the plaintiff no.1 and
defendant both fall under Class -II Schedule of Hindu Succession Act
and are entitled to the share in respect of property that was owned by
Hashmukhbhai Kalaria.
6. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and
Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex
Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence."
7. Under the circumstances, this Second Appeal is devoid of any
substantial question of law. The learned first appellate Court has
rightly decided the issue between the parties in the right perspective
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and as stated above no substantial question of law arises in the
present appeal. The appellant has failed to prove the case before the
learned first appellate Court. This Court does not find any substance
in the present Second Appeal as the same is devoid of any merit both
on facts and law and the same is dismissed at admission stage.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
