Madhya Pradesh High Court

Chokhelal & Ors. vs Ashwini Kumar & Ors. on 23 June, 2022

Author: Dwarka Dhish Bansal

                            1

                                            S.A. No. 153/1995

 IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
                        BEFORE


         SHRI JUSTICE DWARKA DHISH BANSAL

                  ON THE 23rd JUNE, 2022

            SECOND APPEAL NO. 153 OF 1995




BETWEEN:-

1.   CHOKHELAL,   SON    OF
     REBARAM, AGED 50 YEARS
2.   MANGALAL,     SON   OF
     CHOKHELAL      SONKAR,
     AGED ABOUT 25 YEARS
3.   SANTOSH KUMAR, SON OF
     CHOKHELAL,      MINOR
     THROUGH     GUARDIAN
     MOTHER HARBAI
4.   DASHRATHLAL,     SON   OF
     CHOKHELAL
5.   BASORILAL,   SON   OF
     CHOKHELAL,       AGED
     ABOUT 26 YEARS
6.   KISHORILAL, SON   OF
     CHOKHELAL,     MINOR
     THROUGH     GUARDIAN
     MOTHER CHHOTI BAI
7.   NANDILAL,  SON    OF
     CHOKHELAL      MINOR
     THROUGH    GUARDIAN
     MOTHER CHHOTI BAI
                            2

                                       S.A. No. 153/1995

     ALL RESIDENTS OF 280,
     BHANTALAIYA, JABALPUR
     (M.P.)
                                    ........Appellant
(BY SHRI RAVISH AGARWAL, SENIOR ADVOCATE WITH SHRI
DEVDATT BHAVE, ADVOCATE)


AND


1.   ASHWANI KUMAR, SON OF
     VISHNUSWAROOP VERMA,
     AGED ABOUT 22 YEARS,
     R/O BHANTALAIYA WARD,
     JABALPUR        (MADHYA
     PRADESH)
2.   (a) SHAILABALA WIFE OF
     VISHNU KUMAR, AGED 40
     YEARS
     (b)  BANTU    S/O   LATE
     VISHNU KUMAR, AGED
     ABOUT 25 YEARS, 7/14
     CHAR     IMLI     BHOPAL
     (MADHYA PRADESH)
     (c)  KU. DIVYA D/O LATE
     VISHNU KUMAR, AGED
     ABOUT 21 YEARS, 7/14
     CHAR     IMLI     BHOPAL
     (MADHYA PRADESH).
3.   VISHNU SWAROOP S/O
     LATE RAMCHAND , AGED
     ABOUT 56 YEARS, R/O 280
     BHANTALAIYA        WARD,
     JABALPUR        (MADHYA
     PRADESH).
4.   SMT.   SHANTIBAI     W/O
     VISHNU SWAROOP , AGED
     ABOUT      46      YEARS,
     BHANTALAIYA         WARD
                              3

                                               S.A. No. 153/1995

     JABALPUR      (MADHYA
     PRADESH)
5.   HARIOM    KUMAR    S/O
     VISHNU SWAROOP , AGED
     ABOUT     29    YEARS,
     BHANTALAIYA      WARD
     JABALPUR      (MADHYA
     PRADESH)
6.   OM PRAKASH S/O VISHNU
     SWAROOP , AGED ABOUT
     21  YEARS,   BHANTALA
     WARD         JABALPUR
     (MADHYA PRADESH)
7.   KU. MAMTA W/O VISHNU
     SWAROOP BHANTALAIYA
     WARD         JABALPUR
     (MADHYA PRADESH)

                                         ........Respondents

(BY SHRI RAVI RANJAN, ADVOCATE WITH SHRI SUSHANT
RANJAN, RESPONDENT NO.1)




                      JUDGMENT

DWARKA DHISH BANSAL, J.:-

This second appeal has been filed by

appellants/defendants 7-13 challenging the judgment and

decree dated 24.10.1994 passed by learned 5 th Additional

Judge to the District Judge, Jabalpur in Civil Appeal No.1-

S.A. No. 153/1995

A/94 & 2-A/94 whereby reversing the judgment and decree

dated 10.04.1992 passed by Civil Judge Class-II, Jabalpur in

Civil Suit No.77-A/89 whereby learned trial Court dismissed

the suit of the respondent No.1/plaintiff as well as the counter

claim filed by the present appellants/defendants 7, 8 & 11.

2. By the impugned judgment and decree, learned lower

appellate Court has by allowing the civil appeal No. 1-A/94

decreed the suit of the respondent No. 1/plaintiff but

dismissing the appeal No.2-A/94 affirmed the judgment and

decree of trial Court with regard to dismissal of counter claim

of the appellants/defendants 7, 8 & 11.

3. In short, the facts of the case are that the

plaintiff/respondent No. 1 had instituted a suit for declaration

of his 1/12 share, partition and also for separate possession of

the house No.310 (changed No.280) in question situate at

Bhantalaiya Ward, Jabalpur alleging it to be his ancestral

property belonging to common ancestor of the parties and

great-grandfather of the plaintiff.

S.A. No. 153/1995

4. Undisputed genealogical tree is as under:-

Jagannath (Dead) | | | | Jhunnilal Ramchandra Moolchandra (dead) (dead) (Pre-deceased) (died on 9-4-57)

| (Jhunnilal & Moolchandra)

--------------------------- Vishnu Kumar | | (D1) Mukut Bihari Brij Bihari (died on 25-3-86) (dead) (dead) |=Shailbala

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

                                                                       |                 |
                                                                   Bantu          Ku.Divya



                                  Vishnuswaroop (D2)
                                           |=Shantibai (D3)

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

        |                         |                 |                    |
Ashwani Kumar              Hariom          Omprakash                  Mamta
  (Plaintiff)               (D4)             (D5)                     (D6)

5. The plaintiff alleged that after death of great-grandfather

Jagannath, his son Jhunnilal became karta and after death of

Jhunnilal his brother Moolchandra became karta of the family

and thereafter Vishnu Kumar-defendant No.1 became karta

and his name was recorded over the suit property. He alleged

that the suit property being joint family property and he being

S.A. No. 153/1995

coparcener is having right by birth and is entitled to 1/12

share, partition and separate possession.

6. Defendant No.1 Vishnu Kumar appeared and filed

written statement denying the plaint allegations and contended

that there is no joint Hindu family and plaintiff or the

defendants 2-6 are not coparceners. Neither Jagannath nor

Jhunnilal was owner of the suit property. The house was

constructed by his father Moolchandra in the year 1938-39

after obtaining permission from the Municipal Committee.

After death of Moolchandra in the year 1957, his name was

continued till 1961-62 and the application filed by defendant

No.2 Vishnuswaroop was rejected on 20.09.1962, which was

upheld vide order dated 10.03.1967. The plaintiff or defendant

No.2 has no share in the suit house. The defendant No.1

contended that Moolchandra and he, allowed the defendant

No.2 Vishnuswaroop alongwith his family to live in the suit

property, as licensee. As the property was inherited by

defendant No.1 from Moolchandra in the year 1957, hence the

S.A. No. 153/1995

suit is barred by time. With these allegations, the suit was

prayed to be dismissed.

7. After death of defendant No.1, his LRs by filing

separate written statement reiterated the same contentions as

were made by defendant No.1 in his written statement.

8. In the two sets of written statements filed by the

defendants 7-13, they adopted most of the pleas taken by

defendant No.1 in his written statement. The defendants 7, 8

& 11 also filed counter claim with the contentions that they

are bonafide purchasers and they are entitled for possession

over the house of the possession of plaintiff by way of decree

of mandatory injunction.

9. The plaintiff filed written statement to the counter claim

filed by defendants 7, 8 & 11 denying the allegations made

therein and contended that the plaintiff was never licensee of

defendant No.1 or defendants 7-13 and the counter claim filed

by them is barred by time and they are not entitled for decree

S.A. No. 153/1995

of mandatory injunction. Accordingly, the plaintiff prayed for

dismissal of counter claim.

10. The defendants 2-6 did not file any written statement.

11. As has been stated above learned trial Court dismissed

the suit of the respondent No.1-plaintiff holding that the suit

property is not joint Hindu family property of the plaintiff and

defendants 1-6 but the original defendant No.1-Vishnu Kumar

was exclusive owner. It was also held that the defendant No.1-

Vishnu Kumar became separate from plaintiff and defendants

2-6. With these findings learned trial Court held that the

defendant No.1-Vishnu Kumar rightly sold the property to the

defendants/appellants 8-13. However, at the same time,

learned trial Court vide its judgment & decree dated

10.04.1992 dismissed the counter claim negativing the plea of

licensee taken by the defendants 7-13.

12. Being aggrieved by the aforesaid judgment and decree,

the plaintiff-respondent No.1 against dismissal of his suit had

S.A. No. 153/1995

preferred civil appeal No.1-A/94 and the defendants 7-13

against dismissal of their counter claim preferred civil appeal

No.2-A/94. The learned lower appellate Court vide its

judgment and decree dated 24.10.1994 dismissed the civil

appeal No.2-A/94 and confirmed the dismissal of counter

claim but by allowing the civil appeal No.1-A/94, decreed the

civil suit of the respondent No.1/plaintiff holding that the suit

property is ancestral property of the plaintiff and defendants

1-6, which originally belonged to common ancestor Jagannath

having house No.301, which later on was changed as 280 but

infact the property remained the same. It is also held that the

disputed house is not self acquired property of Moolchandra

and the plaintiff/respondent No.1 having right by birth is

entitled for 1/12 share after partition of the same.

13. This Court vide order dated 10.7.1995 admitted the

present second appeal on the following substantial question of

law:-

S.A. No. 153/1995

"Whether the suit filed by the respondent No.1 was maintainable under law for a decree for declaration or partition ?"

S.A. No. 153/1995

14. Learned senior counsel submits that the suit

land/property bearing No.280, 280/1, 280/2, 280/3 and 280/4

is not the same property which was having house No.301 and

the documents (Ex. P/1-P/19) do not prove the identity and

there is no proof that Jagannath owned the property/house

No.301 and further there is no proof that Jagannath, Jhunnilal

and Ramchandra were recorded over the property/house

No.280. He submits that sale deed dated 24.06.1976 (Ex. D/2)

was not challenged but lower appellate Court has also given

finding in that regard and exceeded its jurisdiction. The

statement given by Vishnu Kumar regarding construction of

house by his father Moolchandra is supported by the

documentary evidence (Ex. P/14-P/19) and the application for

mutation filed by defendant No.2 was rightly dismissed

holding that Moolchandra was recorded owner of

property/house No.280. These orders passed rejecting the

application for mutation, dated 20.09.1962 and 10.03.1967

S.A. No. 153/1995

were not challenged. He submits that house No. 301 never

changed into house No. 280, 280/1, 280/2, 280/3 & 280/4.

S.A. No. 153/1995

15. By placing reliance on the judgment of this Court in the

case of Uttam Vs. Saubhag Singh & ors. reported in ILR

(2014) MP 1593, learned senior counsel submits that by

virtue of Section 4 of the Hindu Succession Act, 1956 and due

to death of Moolchandra on 09.04.1957, the plaintiff has no

right to file the suit that too in the lifetime of his father

Vishnuswaroop-defendant No.2, which was upheld by

Hon'ble the Apex Court in the case of Uttam Vs. Saubhag

Singh reported in (2016) 4 SCC 68. He also placed reliance

on the judgments pronounced by Hon'ble the Apex Court in

the case of Sheela Devi and others Vs. Lal Chand and

another reported in (2006) 8 SCC 581, State of Assam Vs.

Ripa Sarma reported in (2013) 3 SCC 63, Yudhishter Vs.

Ashok Kumar reported in AIR 1987 SC 558 and argued that

under the Hindu Law existing prior to coming into force of

the Hindu Succession Act, 1956, grandson had birth right in

the Mitakhshara coparcenary property in the hands of his

grandfather but the position has changed after commencement

S.A. No. 153/1995

of the Act of 1956. He submits that Section 4 of the Act of

1956 provides for overriding effect of the Act on 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

the Act being inconsistent with the provisions of the Act. By

placing reliance on jurisprudence of Salmond, learned senior

counsel submits that a precedent is not binding if it was

rendered in ignorance of a statute or a rule having the force of

statute, i.e., delegated legislation. He submits that even a

lower Court can impugn a precedent on such grounds.

16. Learned senior counsel further pointed out that he has

filed an application under Section 100(5) of CPC [I.A. No.

1178/2019] and submits that the additional substantial

question of law is arising in the present second appeal case as

under:-

S.A. No. 153/1995

"V. Whether from the entire oral as well the documentary evidence available on record it is legally proved that the suit property is not joint family property of the parties but is self acquired property of defendant No.1 and his father which evidence has been wholly misread and/or misconstrued by the Lower Appellate Court in holding to the contrary?"

17. Learned counsel for the respondent No.1/plaintiff in his

reply submits that looking to the age of plaintiff mentioned in

the plaint and not disputed by the defendants, it is clear that

the plaintiff was born in the year about 1954 i.e., prior to

commencement of the Hindu Succession Act, 1956, therefore,

he submits that without doing any exercise it is clear that the

rights of the plaintiff shall be governed by the old Hindu Law

and he relied upon commentary of Hindu law (22nd Edition)

which has stated the position with respect to succession under

Mitakshara Law, as follows:-

" Page 129

"A son, a grandson whose father is dead, and a great- grandson whose father and grandfather are both dead, succeed simultaneously as single heir to the separate or self-acquired property of the deceased with rights of survivorship."

Page 327

S.A. No. 153/1995

"All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth.

A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons, and son's son's sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property."

(emphasis supplied)

18. Learned counsel for the respondent No.1 submits that the

property bearing No. 301 or in 280, 280/1, 280/2, 280/3,

280/4 are the same properties as No. 301 was changed later on

as 280. He further submits that as per documentary evidence

available on record and considered by lower appellate Court

in para 10 of its judgment, the original owner was Jagannath

and it was not self acquired property of Moolchandra. The

learned appellate Court has rightly held that the property has

never been partitioned and learned trial Court had wrongly

presumed partition of the property on the basis of separate

living. He submits that the plaintiff is in possession of part of

S.A. No. 153/1995

the disputed property and has rightly been held to be entitled

for 1/12 share including partition and possession thereof. With

the aforesaid submissions, he prays for dismissal of the

second appeal.

19. Heard learned counsel for both the parties and perused

the record.

20. First of all, it is relevant to mention here that learned

counsel for the appellants has not disputed the factum of

plaintiff's birth prior to year 1956 i.e. prior to commencement

of the Hindu Succession Act, 1956 and according to the age

mentioned in the plaint, his year of birth comes in the year

1954, therefore, undisputably, the rights of plaintiff shall be

governed by the old Hindu Law and not by the Hindu

Succession Act, 1956.

21. Secondly, before both the learned Courts, the question of

maintainability of the suit was not raised by the

defendants/appellants, therefore, the learned Courts below

S.A. No. 153/1995

have not considered the same in their judgments. As the

question of maintainability of the suit was not raised before

the Courts below, therefore, the question of maintainability of

suit based on facts cannot be permitted to be raised at the

second appellate stage.

22. However, fact remains that the plaintiff was born prior

to commencement of the Hindu Succession Act, 1956 and he

is claiming right in the property belonging to his great-

grandfather, therefore, as per Mulla's Commentary on Hindu

Law (supra) the plaintiff being coparcener would succeed the

property having right by birth with rights of survivorship and

his rights will not be affected by the Hindu Succession Act,

1956.

23. The Hon'ble Apex Court has recently in the case of

Arshnoor Singh Vs. Harpal Singh and others reported in

(2020) 14 SCC 436 considered all the previous judgments,

which were also cited by learned senior counsel for the

appellants and held as under:-

S.A. No. 153/1995

"7.6. If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956."

24. Similar is the view taken by coordinate Bench of this

Court in the case of Uttam Vs. Saubhag Singh reported in

ILR (2014) MP 1593, which after considering the case of

Yudhishter (supra) and Sheela Devi and others (supra), held

as under:-

S.A. No. 153/1995

"11. In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 1987 SC 558 referring to the earlier judgment in the case of Chander Sen (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and other Vs. Lal Chand and another reported in (2006)8 SCC 581, it has been further clarified by the Supreme Court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act, therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1889, his share will devolve upon his heirs according to the provisions of the Act.

25. In view of the aforesaid, it is clear that the plaintiff

having been born prior to coming into force of the Hindu

Succession Act, 1956 has right in the joint Hindu family

property belonging to his great-grandfather Jagannath and on

that basis the learned lower appellate Court has rightly

decreed the suit of the plaintiff and rightly dismissed the

counter claim filed by the appellants/defendants 7, 8 & 11.

26. Substantial question of law is answered accordingly.

S.A. No. 153/1995

27. As has been held by learned lower appellate Court on

the basis of documentary evidence that the suit property is

joint Hindu family property of the parties belonging to