Madhya Pradesh High Court
Niranjan Pathak vs Smt. Sharda Devi @ Sharda Bai ... on 5 July, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 5 th OF JULY, 2023
CIVIL REVISION No. 317 of 2021
BETWEEN:-
NIRANJAN PATHAK S/O SHRI RAJ KUMAR PATHAK,
AGED ABOUT 38 YEAR S , OCCUPATION: ADVOCATE
H.NO. 337/4 NORTH MILLONIOGANJ SHANTI NAGAR
RAJEEV GANDHI WARD, JABALPUR (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI RAVISH AGRAWAL-SENIOR ADVOCATE WITH SHRI SAKET
MALIK-ADVOCATE )
AND
1. SMT. SHARDA DEVI @ SHARDA BAI PATHAK W/O
LATE SHRI J.L. PATHAK, AGED ABOUT 85 YEARS,
H.NO. 337/4 NORTH MILLONIGANJ SHANTI
NAGAR RAJEEV GANDHI WARD JABALPUR
(MADHYA PRADESH)
2. SMT. NANDA TIWARI W/O SHRI PRASANT TIWARI
DO W/O LATE SHRI J.L. PATHAK, AGED ABOUT 60
YEARS, SADAR MADIYA, NEAR GOPAL NURSARY,
NARSIGHPUR, DIST. NARSINGHPUR (MADHYA
PRADESH)
3. SHRI RAJ KUMAR PATHAK S/O LATE J.L. PATHAK,
AGED ABOUT 68 YEAR S , OCCUPATION: NOT
MENTION 2215/1, BHARAT COLONY, MADAN
M AH AL WARD, JABALPUR , DIST. JABALPUR
H.NO.337/4 NORTH MILONIGANJ SHANTI NAGAR,
RAJEEV GANDHI WARD, JABALPUR (MADHYA
PRADESH)
4. SHRI SURENDRA KUMAR PATHAK S/O LATE J.L.
PATHAK, AGED ABOUT 62 YEARS, OCCUPATION:
NOT MENTION PLOT NO. 23, BHIM NAGAR
N AR M AD A ROAD, GWARIGHAT, JABALPUR ,
DISTT. JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/7/2023
1:44:20 PM
2
(NONE FOR RESPONDENTS 1-3, SHRI SURESH K. PATHAK-RESPONDENT 4
PRESENT IN PERSON)
CIVIL REVISION No. 316 of 2021
BETWEEN:-
NIRANJAN PATHAK S/O SHRI RAJ KUMAR PATHAK,
AGED ABOUT 38 YEAR S , OCCUPATION: ADVOCATE
H.NO. 337/4 NORTH MILLONIOGANJ SHANTI NAGAR
RAJEEV GANDHI WARD, JABALPUR (MADHYA
PRADESH)
....APPLICANT
(BY SHRI RAVISH AGRAWAL-SENIOR ADVOCATE WITH SHRI SAKET
MALIK-ADVOCATE )
AND
1. SMT. SHARDA DEVI @ SHARDA BAI PATHAK W/O
LATE SHRI J.L. PATHAK, AGED ABOUT 85 YEARS,
H.NO.337/4 NORTH MILLONIGANJ SHANTI
N A G A R RAJEEV GANDHI WARD, JABALPUR
(MADHYA PRADESH)
2. SMT. NANDA TIWARI W/O SHRI PRASHANT
TIWARI, AGED ABOUT 60 YEARS, SADAR MADIYA
NEAR GOPAL NURSARY DIST. NARSINGHPUR MP
(MADHYA PRADESH)
3. SHRI RAJ KUMAR PATHAK S/O LATE J.L PATHAK,
AGED ABOUT 68 YEARS, 2215/1 BHARAT COLONY
MADAN MAHAL WARD H.NO337/4 NORTH
MILONIGANJ SHANTINAGAR, RAJEEV GANDHI
WARD, JABALPUR (MADHYA PRADESH)
4. SHRI SURENDRA KUMAR PATHAK S/O LATE J.L
PATHAK, AGED ABOUT 62 YEARS, PLOT NO. 23
BHEEM NAGAR NARMADA ROAD GWARIGHAT
(MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR RESPONDENTS 1-3, SHRI SURESH K. PATHAK-RESPONDENT 4
PRESENT IN PERSON)
These revisions coming on for admission this day, the court passed the
following:
ORDER
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/7/2023
1:44:20 PM
Both the Civil Revisions are analogously heard and decided by this
common order, which have arisen out of the orders dtd. 15.09.2021 passed by
same Presiding Officer in two different civil suits filed on the same set of facts
between the same parties in which common questions are involved.
2. Both the civil revisions have been preferred by the
applicant/defendant 2-Niranjan Pathak challenging the order dtd. 15.09.2021
passed by XXII Civil Judge Junior Division, Jabalpur in RCS No.206-A/2021
and RCS No.207-A/2021 whereby applications under Order 7 Rule 11 CPC
have been dismissed.
3. Learned counsel for the applicant/defendant 2 submits that both
the civil suits have been filed for declaring the gift deed dtd. 14.09.2020 and
06.10.2020 to be null and void executed by defendant 1-Smt. Sharda Devi and
defendant 4-Smt. Nanda Tiwari (respectively) in favour of defendant 2-Niranjan
Pathak, as well as for permanent injunction to the effect that unless the property
is divided amongst the co-owners/co-sharers the defendants be restrained from
alienating the suit property. By pressing into service the Article 256 of Hindu
Law (Mulla 22nd Edition) he submits that the suit property is not coparcenary
property but it being self acquired property of Jeevan Lal, has devolved upon
his wife-Smt. Sharda Devi, daughter-Smt. Nanda Tiwari and two sons namely
Rajkumar and Surendra Kumar and all are having 1/4th share each as per
section 8 of the Hindu Succession Act. Accordingly, wife Smt. Sharda Devi
and daughter Smt. Nanda Tiwari both were having right to execute the gift deed
in respect of their shares and there was no bar to execute the gift deed,
therefore, the suit(s) filed by the plaintiff Surendra Kumar for declaring the gift
deed(s) null and void cannot proceed further, as he has no cause of action to
Signature Not Verified
file such suit(s).
Signed by: SWETA SAHU
Signing time: 7/7/2023
1:44:20 PM
4. So far as relief of permanent injunction is concerned, learned
counsel for the applicant submits that because the plaintiff is not entitled for
substantive relief of declaration, therefore, no decree of permanent injunction
can be granted against the co-owners/co-sharers. In support of his submissions
learned counsel placed reliance on the decisions in the case of T. Lakshmipathi
and Ors. vs. P. Nithyananda Reddy and Ors. (2003) 5 SCC 150 (Para 25);
Padhiyar Prahladji Chenaji (Deceased) Thr. LRs vs. Maniben Jagmalbhai
(Deceased) Thr. LRs. and Ors. (2022) 12 SCC 128 (Para 32, 36 & 42);
Bachaspati Bhattacharya and Ors. vs. Smt. Mira Bhattacharjee and Ors. AIR
2008 Cal 68 (Para 9 & 11); Roop Chand vs. Indradevi and Ors. AIR 1997
MP 200 and Pyarelal vs. Nandlal 1982 MPWN 27 and also placed reliance on
the provision contained in Section 38(3) of the Specific Relief Act, 1963.
5. Respondent 4, who is present in person supports the impugned
order(s) with the prayer to dismiss the civil revision(s).
6. Heard learned senior counsel for the applicant as well as the
respondent 4 in person and perused the record.
7. From the undisputed facts available on record it is clear that the
property in question was held by Jeevan Lal, who died on 27.04.1962 leaving
behind him his wife, daughter and two sons, therefore, prima facie all four
persons are having 1/4th share each in the suit property. Smt. Sharda Devi wife
and Smt. Nanda Tiwari daughter of deceased Jeevan Lal have allegedly
executed gift deeds dtd. 14.09.2020 and 06.10.2020 in favour of defendant
2/applicant-Niranjan Pathak, who admittedly had no vested right in the property
left by deceased Jeevan Lal and has acquired right in the property only on the
basis of disputed gift deeds executed in his favour which are under challenge in
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/7/2023
1:44:20 PM
said two civil suits.
8. As has been held in the aforesaid judgments cited by learned
counsel for the applicant and from the aforesaid undisputed facts, it is clear that
the applicant/defendant 2-Niranjan Pathak (who although is son of one of the
co-sharers) is stranger vis-à-vis the vested rights of wife, daughter and sons of
deceased Jeevanlal, therefore, only right which the applicant-Niranjan Pathak
does have, is to file a suit for partition and being stranger, he can be restrained
by way of injunction.
9. As the plaintiff has challenged the gift deeds executed by his
mother and sister in favour of defendant 2-Niranjan Pathak and has also filed the
suit for permanent injunction restraining all the defendants including defendant
2-Niranjan Patkak, therefore, at the present stage of the suit it cannot be said
that the plaintiff has no cause of action against all the defendants.
10. Resultantly, the civil revision fails and is hereby dismissed.
11. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
ss
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 7/7/2023
1:44:20 PM
