Sheela Bai vs Droupadi Bai
2023 Latest Caselaw 2053 MP

                                 1                    S.A. No.1626/2006


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 6th OF FEBRUARY, 2023
              SECOND APPEAL No. 1626 of 2006
BETWEEN:-

SHEELA BAI W/O DARYAV SINGH, AGED
ABOUT 55 YEARS, R/O BHORKHEDA
TAHSIL   AND    DISTRICT  DAMOH
(MADHYA PRADESH)


                                                       .....APPELLANT
(BY SHRI MANOJ CHATURVEDI- ADVOCATE )

AND

1.   DROUPADI BAI S/O W/O HAKAM
     SINGH, AGED ABOUT 45 YEARS, R/O
     VILLAGE BHORKHEDA, TAHSIL
     AND DISTRICT DAMOH (MADHYA
     PRADESH)



2.   DERYAV SINGH S/O KHALAK
     SINGH R/O VILLAGE BHORKHEDA,
     TAHSIL AND DISTRICT DAMOH
     (MADHYA PRADESH)



3.   THE STATE OF MADHYA PRADESH
     THROUGH COLLECTOR, DAMOH
     (MADHYA PRADESH)


                                                    .....RESPONDENTS
(SHRI MUKHTAR AHMAD - ADVOCATE FOR RESPONDENT NO.1 )
........................................................................................................

      This appeal coming on for admission this day, the court passed the

following:
                                    2                    S.A. No.1626/2006


                              JUDGMENT

This Second Appeal under Section 100 CPC has been filed against the judgment and decree dated 08.08.2006 passed by Second Additional District Judge, Damoh in Regular Civil Appeal No.15- A/2006 arising out of judgment and decree dated 04.12.2000 passed by Second Civil Judge, Class-II Damoh in Civil Suit No.89A/1999.

2. The facts necessary for disposal of the present appeal in short are that the plaintiff/respondent No.1 filed a suit for partition and permanent injunction as well as for declaration of sale deed dated 21.11.1997 as null and void. It is the case of the plaintiff that the plaintiff and the defendant No.1, namely; Smt. Sheela Bai/appellant are real sisters. They are the daughters of Hukum Singh S/o Natthu Singh. The ancestral properties of Hukum Singh S/o Natthu Singh were situated in Village Bhorkheda, Tahsil and District Damoh. On 10.06.1993, Hukam Singh verbally partitioned the property and a memorandum of partition was prepared on 10.06.1993, which was signed by Hukum Sing and the appellant/defendant as well as the plaintiff put their thumb impressions. Some of the property was kept by Hukum Singh with him. According to the plaintiff, the property, which was given to the plaintiff and the defendant No.1 in partition, has been mentioned in paragraph 1 of the plaint. It was the case of the plaintiff that the defendants No.1 and 2 are claiming that Hukum Singh had executed a sale deed in their favour on 21.11.1997 in respect of Khasra Nos.62, 111, 205, which had fallen to the share of the plaintiff and accordingly, it was claimed that the sale deed dated 21.11.1997 is forged and is null and void because Hukum Singh was not keeping well and he was bed ridden and had very poor eye vision and during his last days, he never went outside the village. It

was the case of the plaintiff that she is in possession of the property in dispute from the date of partition and the defendants were never in possession of the property in dispute. Accordingly, the suit for permanent injunction as well as for declaration of sale deed dated 21.11.1997 as null and void was filed.

3. The defendants No.1 and 2 filed their written statement and claimed that Hukum Singh has executed a sale deed in respect of the property mentioned in paragraph 2 of the plaint and therefore, by virtue of sale deed, the defendant has become the owner and in possession of the land in dispute.

4. The trial Court after framing issues and recording evidence, held that the sale deed executed by Hukum Singh in favour of defendant No.1/appellant was forged and is null and void and accordingly, it was held that the plaintiff and the defendant No.1 are having 1/2 share in the ancestral property.

5. Being aggrieved by the judgment and decree passed by the trial Court, the appellant preferred an appeal, which has been decreed partially and it has been held that Hukum Singh had partitioned the property during his lifetime and 1/3rd share each was given to the plaintiff as well as the defendant No.1 and remaining 1/3rd share was kept by Hukum Singh for his own purposes. The sale deed dated 21.11.1997 executed by Hukum Singh in favour of defendant No.1 was also upheld but it was held that after partition, since Hukum Sing was having only 1/3rd share in the property in dispute therefore, he could not alienate in excess of what he was having on the date of execution of sale deed. Therefore, it was held that the plaintiff is entitled for 1/3rd share in the disputed property, whereas the defendant No.1 is also entitled for her 1/3rd share in the disputed property apart from the property alienated by

Hukum Singh by registered sale deed dated 21.11.1997.

6. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that the Courts below have committed a material illegality by holding that Hukum Singh had partitioned the property during his lifetime. It is the case of appellant that since the entire property was alienated by Hukum Singh by registered sale deed dated 21.11.1997, therefore, the First Appellate Court should have dismissed the suit in toto and should not have declared that the plaintiff has 1/3rd share in the property in dispute and accordingly, proposed the following substantial questions of law:

"(I) Whether, the judgment and decree of learned court below in decreeing the suit of plaintiff is legal and would be sustained in law?

(II) Whether, the saledeed Ex. D-1 dated 21.11.1997 executed by father Hukum Singh in respect of the own/ancestral property, is illegal and void, as held by the learned First Appellate Court to the excess to 1/3rd share as per the partition effected earlier dated 10.06.1993 executing memory "Feharist Nama" In view of the facts and circumstances of the case?

(III) Whether, the learned courts below committed an error of law relying the document "Feharist Nama" executed as the Memory of earlier partition on dated 10.06.1993, decreeing the suit of plaintiff hence, the judgment and decree would not be sustained in law?

(IV) Whether, the Hukum Singh in respect of property belongs to his own title, was not right to execute the saledeed,

having his legal necessity, and in view of this saledeed Ex.P-1 the excess share of 1/3rd as per alleged oral partition and Feharist Nama, was illegal and void as has been held by the learned First Appellate Court?

(V) Whether, the learned court below committed an error of law granting the decree of permanent injunction holding the suit property as undivided having joint title and possession of plaintiff and defendant?

(VI) Whether, the suit so far the declaration of null and void saledeed Ex.P-1 was maintainable for trying the jurisdiction as valuation as per law?"

7. Heard the learned counsel for the appellant.

8. The only question for consideration is as to whether Hukum Singh had partitioned the property during his lifetime or not? Smt. Sheela/appellant/defendant No.1 had appeared as defence witness No.5. In paragraph 2 of her examination-in-chief, she has admitted that Hukum Singh had partitioned the property during his lifetime. In paragraph 3 of her cross-examination, she admitted that half share was given to the plaintiff and to the defendant No.1/Smt. Sheela/appellant. Thus, it appears that the appellant/defendant No.1, namely; Smt. Sheela, D.W.5, herself has admitted that partition was done by Hukum Singh during his lifetime and half of the property was given to the plaintiff as well as the defendant No.1 respectively. However, the First Appellate Court has held that Hukum Singh had given 1/3rd share to the plaintiff and the defendant No.1, whereas 1/3rd share was kept by Hukum Singh for himself. In absence of any appeal by the plaintiff, this Court does not

wish to unsettle the findings given by the First Appellate Court. However, one thing is clear that Smt. Sheela/appellant/defendant No.1 has herself admitted in her evidence that property was partitioned by Hukum Singh during his lifetime and a share was given to the plaintiff. Thus, the First Appellate Court was right in holding that Hukum Singh could not have alienated more than what he was having with himself.

9. Under these circumstance, this Court is of the considered opinion that no illegality was committed by the First Appellate Court by partially allowing the appeal filed by the appellant, thereby declaring that the plaintiff has 1/3rd share in the property, whereas the defendantNo.1/appellant has 1/3rd share apart from the land sold by Hukum Singh by registered sale deed dated 21.11.1997.

10. Accordingly, no substantial question of law arises in the present appeal.

11. Ex-consequenti, the judgment and decree dated 08.08.2006 passed by Second Additional District Judge, Damoh in Regular Civil Appeal No.15-A/2006 is hereby affirmed.

12. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.02.07 18:16:06 +05'30'