Shobhelal vs Mist. Imlabai
2022 Latest Caselaw 3734 MP

       HIGH COURT OF MADHYA PRADESH : JABALPUR.

                             *******

                Second Appeal No. 721 of 2020


Appellants/defendants :      1.        Shobhelal S/o Ishanlal
                                       aged about 55 years,
                                       Occuptaion- Farmer,


                             2.        Sohanlal S/o Ishanlal
                                       aged about 52 years,
                                       Occupation-Farmer


                                       Both R/o Village Bhandarbodi,
                                       Tehsil Khairlanji
                                       District Balaghat


                                       -Versus-


Respondents/plaintiffs:      1.        Mist. Imlabai
                                       W/o Balchandra Bhagat
                                       aged about 50 years.

                             2.        Mst. Meera Bai
                                       W/o Rajendra Pardhi
                                       aged about 44 years

                                       Both R/o Village Ghubad Gondi
                                       Tehsil Khairlanji,
                                       District Balaghat

                             3.        State of M.P.
                                       through Collector Balaghat,
                                       District Balaghat (M.P


                             *********
     Shri Sanjay Sharma, counsel for the appellant.
     Ms. Seema Jaiswal, Panel Lawyer for the State.
                                   (2)


                               ********
                          JUDGMENT

(16/03/2022)

1. This second appeal has been filed by the

appellants/defendants being aggrieved by the judgment and decree

dated 9.12.2019 passed by Second Additional District Judge,

Waraseoni, District Balaghat in Civil Appeal No. 500043A/2015

affirming the judgment and decree dated 27.8.2013 passed by

Third Additional Civil Judge Class-II, Warasoni in Civil Suit No. 37-

A/2012.

2. The facts of the case, in short, are that the

plaintiffs/respondents and defendants/appellants are close relatives.

The father of the plaintiffs/respondents namely Ishanlal died in the

year 2002. The plaintiffs/respondents are his legal representatives.

The suit property bearing Khasra No. 245/2, 246/2, 247/2, 248/2,

251/2, 252/2, 575, 598/2, 599/1, 599/2, 600/2, 600/3, 601/3, 625/1,

626/1 and 627/1 total area 7.78 hectare is the ancestral property of

Ishanlal in which, each of the plaintiffs and defendants is having

1/6th share. There was no partition of the suit property between the

plaintiffs and the defendants in spite of that the defendants got their

names recorded in the revenue records illegally, therefore, the

plaintiffs filed civil suit claiming partition and 1/6th share over the

suit property.

3. The defendants by way of filing written statement denied the

pleadings made by the plaintiffs in the plaint except the admitted

facts. It was pleaded that the plaintiffs Imlabai and Meera Bai got

married in the year 1978 and 1984 respectively. Both of them

received their share in the form of ornaments and cash, therefore,

they do not have any right or share over the suit property. It was

further pleaded that the defendants got the suit property partitioned

in the lifetime of their father and at that time the plaintiffs did not

raise any objection, therefore, the plaintiffs have no right or share in

the suit property, therefore, their plaint may be rejected.

4. Defendant No. 3 supported the pleadings made by the plaintiffs

in the plait.

5. Learned trial Court after appreciating the oral and documentary

evidence of both the parties decreed the suit filed by the plaintiffs on

the grounds that the plaintiffs have proved that the suit property is

the ancestral property of the plaintiffs and defendants and each of

them has a right to get 1/6th share over the suit property. The trial

Court further held that the order dated 30.7.2010 passed in respect

of the suit property is not binding on the plaintiffs.

6. Being aggrieved by the judgment and decree passed by the

trial Court, the defendants/appellants filed an appeal before the

lower appellate Court. The lower appellate Court dismissed the

appeal filed by the defendants/appellants and observed that it has

been established that neither the plaintiffs/respondents gave their

consent for alleged partition nor any such partition or consent letter

has been executed, despite that Tehsildar made partition of the

ancestral property of Ishanlal on the application of the defendants,

which is completely erroneous. The lower appellate Court has

further observed that the plaintiffs are daughters of Ishanlal,

defendant Nos. 1 to 3 are sons of Ishanlal and defendant No. 4 is

the wife of Ishanlal, therefore, all of them are legal heirs of Ishanlal

and each of them have a right to get equal share i.e. 1/6th share.

7. Learned counsel for the appellants/defendants has submitted

that the findings recorded by both the Courts below are perverse

and illegal as the Courts below have not properly appreciated the

oral and documentary evidence available on record. He has further

submitted that both the Courts below have failed to consider that the

plaintiffs are daughters of Ishanlal. Hindu Succession (Amendment)

Act, 2005 came into force w.e.f. the year 2005. According to Hindu

Succession (Amendment) Act, 2005 to get share from the property

of father to the daughter both father and daughters must survive on

the date of amendment i.e. 2005. In the present case, Ishanlal died

in the year 2002 and on the date of amendment i.e. 2005, Ishanlal

was not alive, therefore, the plaintiffs are not entitled to get share in

the suit property. In support of this contention, learned counsel for

the appellant has placed reliance on the decision of the Supreme

Court in the case of Prakash & others v. Phulavati & others -

2016 SAR (Civil) 81 wherein it has been held that for a daughter to

claim share in the coparcenary property, both she and her father

should be alive on the date of Hindu Succession (Amendment) Act,

2005.

8. Learned counsel for the appellants/defendants has further

submitted that the mutation was done on the basis of partition in

accordance with law after issuance of notice to the interest parties

and the plaintiffs have not challenged the partition in civil suit,

therefore, the suit itself is not maintainable. Learned counsel has

further submitted that the plaintiffs have failed to prove that the suit

property is ancestral property, therefore, plaintiffs have no right or

share over the suit property.

9. Learned Panel Lawyer has supported the findings recorded by

both the Courts below.

10. I have heard learned counsel for the parties and gone through

the judgments and decree passed by both the Courts below. There

are concurrent findings recorded by both the Courts below in favour

of the plaintiffs. Coming to the contention of learned counsel for the

appellant that as per Hindu Succession (Amendment) Act, 2005, the

daughter and father both should be alive on the date of the said

amendment; in this regard, guidance may be taken from the

decision of the Supreme Court in the case of Vineeta Sharma v.

Rakesh Sharma and others - (2020) 9 SCC 1 wherein the

Supreme Court has observed that daughter born before date of

enforcement of the 2005 Amendment Act has the same rights as

daughter born on or after the amendment and there is no

requirement of coparcener father to be alive on date of coming into

force of the said amendment. The Supreme Court in Paragraphs 68

and 74 has held thus:-

68. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu Law of obstructed heritage has been given a concrete shape under the provisions of Sections 6(1)(a) and 6(1)(b).

Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to Mitakshara coparcenary Hindu law, as administered which in recognized Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment i.e. 9-9-2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).

74. The argument raised that if the father or any other coparcener died before the 2005 Amendment Act, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrued. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended Section 6. The share of

the surviving coparcener may undergo change till the actual partition is made. The proviso to Section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to Section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted Section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of Section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in Section 6, she has been made a coparcener. The precise declaration made in Section 6(1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9-9-2005 by Section 6(3).

11. It is clear from the aforesaid decision of the Supreme Court that

it is not at all necessary that the father of the daughter should be

living as on the date of the amendment, as she has not been

conferred the rights of a coparcener by obstructed heritage, thus, in

the light of decision of the Supreme Court in Vineeta Sharma

(supra), the contention of learned counsel for the appellant that

father and daughter should be alive on the date of amendment, is

not tenable and is hereby rejected.

12. Next contention of the learned counsel for the appellant is that

the plaintiffs have failed to prove that the suit property is ancestral

property. The mutation was done on the basis of partition in

accordance with law after issuance of notice to the interest parties

and the plaintiffs have not challenged the partition in civil suit.

Both the Courts below after appreciating the oral and

documentary evidence available on record found proved that the

plaintiffs have proved that the suit property is the ancestral property

of the plaintiffs & defendants and each of them has a right to get

1/6th share over the suit property. It was further found established

by both the Courts below that it has been established that neither

the plaintiffs/respondents gave their consent for alleged partition nor

any such partition or consent letter has been executed, despite that

Tehsildar made partition of the ancestral property of the Ishanlal on

the application of the defendants, which is completely erroneous.

13. There are concurrent findings recorded by both the Courts

below. The jurisdiction of this Court to interfere with the findings of

fact under Section 100 of the Code of Civil Procedure is well defined

by catena of decisions of the Supreme Court. This Court cannot

interfere with the finding of fact until or unless the same is perverse

or contrary to material on record. [See: Narayan Rajendran and

Anr. v. Lekshmy Sarojini and others, (2009) 5 SCC 264, Hafazat

hussain v. Abdul Majeed and others, (2011) 7 SCC 189, Union of

India v. Ibrahim Uddin and another, (2012) 8 SCC 148, D.R.

Rathna Murthy v. Ramappa, (2011) 1 SCC 158 Vishwanath

Agrawal v. Sarla vishnath Agrawal, (2012) 7 SCC 288 and

Vanchala Bai Raghunath Ithape v. Shankar Rao Babu Rao

Bhilare, (2013) 7 SCC 173].

14. The concurrent findings of fact recorded by the Courts below

are based on meticulous appreciation of evidence on record which

by no stretch of imagination can be said either to be perverse or

based on no evidence.

15. For the aforementioned reasons, no substantial question of

law arises for consideration in the instant appeal. In the result, the

appeal fails and is hereby dismissed.

(Smt. Anjuli Palo) Judge

PB

Digitally signed by PRADYUMNA BARVE Date: 2022.03.21 17:54:51 +05'30'