Madhya Pradesh High Court
Lalita Bai vs Aatmaram on 16 February, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 16th OF FEBRUARY, 2023
SECOND APPEAL No. 907 of 2021
1. LALITA BAI WD/O KANHAIYALAL
DHAKAD, AGED ABOUT 29 YEARS,
KACHALIYA TEH. GAROTH AT
PRESENT RATLAM (MADHYA
PRADESH)
2. KHUSHBOO D/O KANHAIYALAL
DHAKAD MINOR THR. NATURAL
GURDIAN MOTHER LALITA BAI WD/O
LATE KANHAIYALAL DHAKAD, AGED
ABOUT 29 YEARS, R/O KACHALIYA
TEH. GAROTH AT PRESENT DIST.
RATLAM (MADHYA PRADESH)
3. RAMSINGH S/O SHRI NARAYAN
SINGH SOU. RAJPUT, AGED ABOUT 24
YEARS, R/O VILLAGE DHAKANI TEH.
GAROTH, DISTT. MANDSAUR
(MADHYA PRADESH)
.....APPELLANTS
(SHRI RISHIRAJ TRIVEDI, LEARNED COUNSEL FOR THE
APPELLANTS)
AND
1. AATMARAM S/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 43 YEARS, R/O GRAM
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH)
2. GEETA BAI WD/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 70 YEARS, R/O GRAM
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
2
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH)
3. BASANTI BAI D/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 40 YEARS, R/O GRAM
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH)
4. KRISHNABAI D/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 38 YEARS, R/O GRAM
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH)
5. PUSHPABAI D/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 36 YEARS, R/O GRAM
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH))
6. DHAPUBAI D/O LATE SHRI
BHANWARLAL DHAKAD, AGED
ABOUT 31 YEARS, R/O GRAM
KACHALIYA, DISTRICT MANDSAUR
(MADHYA PRADESH)
7. STATE OF M.P. THROUGH
COLLECTOR, DISTRICT MANDSAUR
(MADHYA PRADESH)
.....RESPONDENTS
(MS.VINITA PHAYE, LEARNED GOVERNMENT ADVOCATE FOR THE
RESPONDENT/STATE )
--------------------------------------------------------------------------------------------------
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
3
JUDGMENT
The present second appeal has been filed by defendants no.1, 2 and 4
against the judgment dated 27.10.2016 whereby the learned Civil Jude,
Class-II Garoth, district Mandsaur decreed the suit and judgment and
decree dated 12.01.2021 whereby the learned Additional District Judge,
Garoth, district Mandsaur has dismissed the civil appeal.
2. The facts of the case in brief are that the respondents/plaintiffs filed
a civil suit before the learned trial Court against the appellants/defendants
No. 1, 2 and 4 in respect of suit lands bearing survey nos.181, 234, 248 and
255 situated at village Kachhaliya, Tehsil Garoth, District Mandsaur (M.P.)
for the relief of declaration of title and partition to the extent of 1/7 th share
so also for declaration of sale deed executed by appellants/defendants No.
1, 2 in favour of appellant/defendant No. 4 to be null and void qua the
interest of the respondents/plaintiffs in the suit properties and also for
permanent injunction. The appellants/defendants averred in the plaint that
the suit properties belonged to the common male ancestor late Bhanwarlal
ie. father of respondents/plaintiffs No. 1, 3 to 6 and husband of
appellant/defendant No. 1 namely late Kanhaiyalal and husband of
respondent/plaintiff No. 2. The suit properties stood recorded in the name
of late Bhanwarlal during his life time and after his death which occurred
on 11.12.1997, the name of appellants/defendants No. 1, 2 along with the
name of respondents/plaintiffs No. 1 & 2 came to be recorded at the
instance of the appellants/defendant No. 1 behind the back of the
respondents/plaintiffs. The appellants /defendant No. 1 also applied for
partition under section 178 of MPLRC and secured the partition order and
on the basis of the same sold the lands bearing survey no. 234/1 and 348/1
to appellant/defendant No. 4 which is not binding on the
respondents/plaintiffs since the appellant/defendant No. 1 had only 1/7th
share in the suit properties equivalent to that of the respondents/ plaintiffs.
In the said premise of the fact, the suit came to be filed. The
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
appellants/defendants No. 1, 2 jointly filed the written statements, while
refuting the plaint averments, further pleaded that a partition came to be
effected after the death of said Bhanwarlal and in the said partition, the
lands bearing survey no. 234 and 248 came to fall in the share of said
Kanhaiyalal. The appellant/defendant No. 4 also filed written statement
whereby he also refuted the plaint averments and prayed for dismissal of
the suit. The learned trial Court by judgment and decree dated 27.10.2016
allowed the suit declaring 1/7th share of respondents/ plaintiffs and
appellants/defendant No. 1 and 2 and have also declared the sale deed
dated 04.06.2012 to be null and void. The appellants/defendants No. 1, 2
and 4 being aggrieved by the same, preferred a regular civil appeal before
the learned lower appellate Court and vide impugned judgment and decree
dated 12.01.2021 dismissed the said appeal preferred by the
appellants/defendant No.1, 2 and 4.
3. On the basis of the evidence which came on record the learned trial
Court vide judgment dated 27.10.2016 has decreed the suit as under:-
^^46- mijksDr foospuk ,oa ewY;kadu ds vk/kkj ij U;k;ky; bl
fu"d"kZ ij gS fd oknhx.k ekStk dNkfy;k rg0 xjksB fLFkr Hkwfe losZ
dza 181 jdck 0-040] 234 jdck 0-130] 248 jdck 2-230] 255 jdck 1-
720 dqy fdrk 4 dqy jdck 4-120 gsDVj ds laca/k esa LoRo ?kks"k.kk]
caVokjk ,oa LFkk;h fu"k/kkKk ckcr okn izekf.kr djus esa lQy jgs gSaA
vr% oknhx.k dk okn Lohdkj fd;k tkdj oknhx.k ds i{k esa izfroknh
dza- 01] 02 ,oa 04 ds fo:) fuEukuqlkj vk'k; dh vkKfIr iznku dh
tkrh gS&
1& ;g ?kksf"kr fd;k tkrk gS fd oknh dza- 01 yxk;r 06]
izfroknh dza- 01 o 02 ds lkFk xzke dNkfy;k rglhy xjksB fLFkr
Hkwfe losZ dza- 181 jdck 0-040] 234 jdck 0-130] 248 jdck 2-230]
255 jdck 1-720 dqy fdrk 4 dqy jdck 4-120 gsDVj ds la;qDr :Ik
ls LoRo/kkjh gksdj izR;sd dk oknxzLr Hkwfe esa [email protected]] [email protected] dk leku
gd fgLLkk gSA
2& ;g ?kksf"kr fd;k tkrk gS fd U;k;ky; rglhynkj xjksB
}kjk jktLo izdj.k dzekad [email protected],&[email protected]&11 esa ikfjr vkns'k fnukad
27-6-11 izHkko'kwU; gksdj oknhx.k ds LoRoksa ij ca/kudkjh ugha gSaA
3& oknh dza- 03 yxk;r 06 jktLo vfHkys[kksa esa oknxzLr Hkwfe
ij muds LoRo ,oa va'k ds eku ls ukekarj.k djkus ds vf/kdkjh gSA
4& oknhx.k l{ke jktLo U;k;ky; ls oknxzLr Hkwfe esa ls
muds [email protected]] [email protected] gd fgLls dk fof/kor cVokjk djokdj i`Fkd
vkf/kiR; izkIr djus ds vf/kdkjh gSaA
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
5& izfroknh dza- 01 o 02 }kjk izfroknh dza- 04 ds i{k esa
fu"ikfnr jftLVMZ fodz; i= fnukad 04-6-12 tks muds [email protected] va'k ls
vf/kd gS] oknhx.k ds fgrksa ds eqdkcys voS/k ,oa izHkko'kwU; gSaA
6& izfroknhx.k dks LFkkbZ :Ik ls fu"ksf/kr fd;k tkrk gS fd os
Lo;a vFkok fdlh vU; ds ek/;e ls oknxzLr Hkwfe dk fof/kor caVokjk
gksus rd oknxzLr Hkwfe vFkok mldk dksbZ Hkkx vU;= fodz; ;k
varfjr u djsAa
7& izfroknhx.k Lo;a ds lkFk&lkFk oknhx.k dk okn O;;
ogu djsxa As
8& vf/koDrk ''kqYd rkfydk vuqlkj ;k izekf.kr gksus ij
izek.k i= vuqlkj ;k nksuksa esa ls tks Hkh de gks yxk;k tkosA
rn~vuqlkj fMdzh cukbZ tkosA^^
4. Thereafter, appellants no.1 and 2 being the legal heirs of Kanhaiyalal
and defendant no.4 being a subsequent purchaser preferred an appeal
before the District Judge which came to be dismissed vide judgment dated
12.01.2021 upholding the judgment and decree in favour of the plaintiff.
Hence this second appeal before this Court.
5. I have heard the learned counsel for the appellants.
6. The head of the family was Bhanwarlal who survived by five
daughters and two sons. One of the son Kanhaiyalal died and in his place
name of his wife Lalitabai and Khusboo defendants no.1 and 2 were
mutated. They sold the land to Ram Singh. Plaintiffs no.1 to 6 filed a civil
suit seeking a decree of partition, declaration of the sale deed as void.
According to them after the death of Bhanwarlal all the legal heirs are
having equal share i.e. 1/7th in the property left by Bhanwarlal. Defendants
no.1and 2 have sold the land more than the share of 1/7 th . The learned trial
Court after examining the evidence and the provisions of Section 8 of the
Hindu Succession Act has declared the share of plaintiffs as well as the
defendants no.1 and 2 and declared the sale deed dated 04.06.2012 void to
the extent of more than 1/7th share to defendants no.1 and 2 in the suit
property.
7. These factual aspects of the matter are not in dispute. The provisions
of Section 8 are also not in dispute. There was no partition in the family
during the life time of Bhanwarlal even after death, therefore, the daughters
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
of Bhanwarlal are having equal share in the property. The trial Court has
not committed any error while deciding the 1/7th - 1/7th share to all the legal
heirs of Bhanwarlal. Likewise, the appellate Court has also not committed
any error.
8. In view of the above, this appeal does not involve any question of
law much less substantial question of law. Accordingly, this appeal fails
and is hereby dismissed.
No order as to costs.
(VIVEK RUSIA)
JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 16-02-2023
17:54:10
