Ganesh vs Shantabai
2023 Latest Caselaw 1146 MP

                        1



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 19th OF JANUARY, 2023
              SECOND APPEAL No. 923 of 2019

BETWEEN:-

1.    GANESH S/O LATE LAXMAN RAO BODKHE,
      AGED ABOUT 33 YEARS, KUNBI, VILL.
      PADARSINGHA, TEH. MULTAI (MADHYA
      PRADESH)
2.    MAHADEO     S/O   LATE  LAXMANRAO
      BODKHE, AGED ABOUT 37 YEARS, R/O
      VILLAGE PADARSINGA, TEHSIL MULTAI,
      DISTT. BETUL (MADHYA PRADESH)
3.    RAJU S/O LATE LAXMANRAO BODKHE,
      AGED ABOUT 30 YEARS, R/O VILLAGE
      PADARSINGA, TEHSIL MULTAI, DISTT.
      BETUL (MADHYA PRADESH)
4.    PARWATI ALIAS CHANDRAKALABAI W/O
      LATE LAXMANRAO BODKHE, AGED
      ABOUT   68  YEARS,   R/O VILLAGE
      PADARSINGA, TEHSIL MULTAI, DISTT.
      BETUL (MADHYA PRADESH)
5.    SUMAN D/O LATE LAXMANRAO BODKHE,
      AGED ABOUT 43 YEARS, VILLAGE
      PANDHARI (MADHYA PRADESH)
6.    VANDANA   D/O   LATE   LAXMANRAO
      BODKHE, AGED ABOUT 40 YEARS,
      VILLAGE MALGAON TEHSIL MULTAI DIST.
      BETUL (MADHYA PRADESH)
7.    SEVAKRAM    S/O  GOPIRAM   DHOTE
      VILLAGE MELEGAON (MADHYA PRADESH)
                                            .....APPELLANTS
(BY SHRI SHAILENDRA VERMA - ADVOCATE)
                               2




AND

1.    SHANTABAI D/O GENDU BODKHE VILL
      SONEGAON,   TEH  AMLA,  (MADHYA
      PRADESH)

2.    SANTOSHRAO S/O LATE LAXMANRAO
      BODKHE, AGED ABOUT 50 YEARS,
      PARADSINGA, (MADHYA PRADESH)

3.    BHOJU ALIAS BHOJRAO S/O LATE
      LAXMANRAO BODKHE, AGED ABOUT 47
      YEARS, PATEL WARD SADAR BETUL
      (MADHYA PRADESH)

4.    DINESH S/O LAXMANRAO BODHKE, AGED
      ABOUT 68 YEARS, VILLAGE PADARSINGA
      (MADHYA PRADESH)

5.    COLLECTOR / DISTRICT MAGISTRATE
      THE STATE OF MADHYA PRADESH BETUL
      (MADHYA PRADESH)
                                                    .....RESPONDENTS
(RESPONDENT/STATE BY MS.SHANTI TIWARI - PANEL LAYWER)

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

the following:

                              ORDER

1. This Second Appeal under Section 100 of CPC has been filed against the Judgment and Decree dated 19-12-2018 passed by Additional District Judge, Multai, Distt. Betul, in C.A. No. 01- A/2018 arising out of Judgment and Decree dated 10-3-2018 passed by 1st Civil Judge, Multai, Distt. Betul in C.S. No. 35-A/2016.

2. The facts necessary for disposal of present appeal in short, are that the respondents no. 1 and 2 filed a suit for declaration of title,

for declaration of sale deed dated 26-5-2011 as null and void as well for restraining the defendants from alienating the land bearing Kh. No. 32/5, 213/4, 234/8, 235/6 situated in village Paradsingha, Tahsil Multai, Distt. Betul and Kh. No. 109/1,116/3,117,121/2,122 situated in village Malegaon, Tahsil Multai, Distt. Betul. It is the case of the plaintiff that they have 2/9 share in the suit property.

3. It is the case of the plaintiff that Laxman Rao had two wives namely Parvati @ Kashibai and Parvati @ Chandrakala bai. Santosh Rao and Bhoju @ Bhojrao were born from Parvati @ Kashibai whereas Dinesh, Mahadev, Ganesh, Raju, Suman and Vandana were born from Partvati @ Chandrakala bai. It is the case of the plaintiff that the land in dispute was the ancestral property of Laxman Rao. He was under the pressure of the defendants no.1 to 7. The defendants no. 1 to 7 are claiming their title on the basis of Will of Laxman Rao which was prepared just three days prior to his death, but the said Will is a forged document. Even otherwise, he had no right to execute a Will in respect of his ancestral property. The defendants no. 1 to 7 got their names mutated in the revenue record without getting the plaintiffs served, accordingly an appeal was filed, which was dismissed. The Second Appeal was also dismissed by Add. Commissioner, Narmadapuram and therefore, the plaintiffs have been denied justice.

4. The defendants no. 1 to 7 filed their written statement. It was claimed that defendant no. 8 is the real sister of Laxman Rao. The factum of two wives of Laxman Rao was also admitted. It was

further claimed that Laxman Rao had executed a Will dated 26-5- 2011. Since, Laxman Rao had performed second marriage after the death of Parvati @ Kashibai, therefore, the plaintiffs were annoyed with Laxman Rao. The defendant no. 8 had not taken any share in the property and was residing happily in her matrimonial home. It was further claimed that on the insistence by the plaintiff, Kh. No. 32/5,235/6 situated in village Paradsingha was given to the plaintiffs.

5. The defendant no. 8 Shantabai, did not file any written statement.

6. The Trial Court after framing issues and recording evidence, held that the defendants have failed to prove the Will and the plaintiffs have 2/9 share in the property in dispute.

7. Being aggrieved by the Judgment and Decree passed by the Trial Court, the defendant no. 8 Shanta bai preferred an appeal, which has been allowed by the First Appellate Court and the share of 2/9 given by the Trial Court has been reduced to 4/27 on the ground that being the sister of Laxman Rao, Defendant no. 8/Shantabai also has equal share in the property which cannot be denied to her.

8. Challenging the judgment and decree passed by the First Appellate Court, it is submitted by the Counsel for the Appellant that the First Appellate Court has wrongly reduced the share of the Appellants and proposed the following Substantial Questions of Law :

Proposed Substantial Questions of Law

(i) Whether the Lower Appellate Court has rightly in reserving the well reason the Judgment and Decree of Trial Court, is perverse?

(ii) Whether the Lower Appellate has properly considered the law let down in Apex Court in Prakesh Vs.Phoolwati MPLJ 2019 volume 1 page 108?

(iii) Whether amendment of 2005 in Hindu Succession Act is retrospective?

(iv) Whether the section 6 and section 8 of Hindu Succession Act come into the from 9.9.2005 and Shanti Bai's father has been died prior to the amendment 2005 then also she is entitled to the partition in the property of Late Laxman Rao?

(v) Whether the Lower Appellate Court has miss reading the Hindu Succession Act amendment Act 2005 and ignore the repealing act 2015 by which is this amendment was deleted by the government, hence the Judgment of Lower Appellate Court will still survive?

(vi) Whether, as per Hindu Succession act daughter had birth right in ancestral property after the amendment made in year 2005 in Hindu Succession Act while the suit was filed in year 13.05.2016 and after the amendment made in Hindu Succession Act in year 2015, the appellate court has rightly relied and held in Para 17 that, daughter has birth right as per Section 6 of Hindu Succession Act 1956?(vii) Whether, Section 6 & 8 of the Hindu Succession Act 1956 was rightly applied in the present case as Gendu and his son Laxman rao has died before 2005 ?

(vii) Whether, section 6 and 8 of the Hindu Succession Act, 1956, was rightly applied in the present case as Gendu and his son Laxman Rao has died before 2005 ?

(viii) Whether, the finding of lower appellate court is against the Hindu Succession Act has no birth right was given to

daughter and amendment of 2005 of deleted in year 2015, relying of amendment 2005 decree is liable to be rejected

(ix) What relief parties are entitled.

9. Heard the learned Counsel for the Appellants.

10. The Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma reported in (2020) 9 SCC 1 has held as under :

137. Resultantly, we answer the reference as under:

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9- 9-2005.

137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

138. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

139. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju. The opinion expressed in Danamma v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.

11. In the light of the judgment passed by Supreme Court in the case of Vineeta Sharma (Supra) this Court is of the considered opinion, that the First Appellate Court did not commit any mistake by holding that the defendant no. 8 Shanta bai also has share in the property along with her brother Laxman Rao.

12. Accordingly, it is held that no Substantial Question of Law arises in the present case.

13. Ex-consequenti, the judgment and decree dated 19-12-2018 passed by Additional District Judge, Multai, Distt. Betul, in C.A. No. 01-A/2018 is hereby affirmed.

14. The Appeal fails and is hereby Dismissed in limine.

(GURPAL SINGH AHLUWALIA) JUDGE

HEMANT SARAF 2023.01.23 18:42:25 +05'30' HS