Premlata vs Ramsubhash
2023 Latest Caselaw 3938 MP

                               1           S.A. No.333/2019



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 14th OF MARCH, 2023
              SECOND APPEAL No. 333 of 2019
BETWEEN:-

1.    PREMLATA W/O RAMDEEN FOUZDAR,
      AGED ABOUT 60 YEARS, OCCUPATION:
      SERVICE R/O H.NO. 1127/A SANJEEVNI
      NAGAR   DURGA    COLONY     GARHA,
      JABALPUR (MADHYA PRADESH)



2.    ASHISH S/O RAMDEEN FOUZDAR, AGED
      ABOUT 34 YEARS, R/O H.NO.1127/A,
      SANJEEVNI NAGAR, DURGA COLONY
      GARHA JABALPUR (MADHYA PRADESH)



3.    HARISH S/O RAMDEEN FOUZDAR, AGED
      ABOUT    33  YEARS,   OCCUPATION:
      SERVICE R/O H.NO.1127/A, SANJEEVNI
      NAGAR,   DURGA   COLONY     GARHA
      JABALPUR (MADHYA PRADESH)



                                           .....APPELLANTS
(BY SHRI R.K. SANGHI - ADVOCATE)

AND

1.    RAMKISHOR       S/O     GAYAPRASAD
      FOUZDAR AGED ABOUT 75 YEARS R/O
      BRAHMANVADA SALGAPUR, DISTRICT
      GADARWAR NARSINGHPUR (MADHYA
      PRADESH) [DELETED AS PER COURT
      ORDER DATED 06.02.2019]
                            2            S.A. No.333/2019



2.   RAMSUBHASH   S/O   GAYAPRASAD
     FOUZDAR, AGED ABOUT 68 YEARS,
     OCCUPATION: AGRICULTURIST    R/O
     BRAHMANVADA   SALGAPUR    DISTT.
     GADARWARA NARSINGHPUR (MADHYA
     PRADESH)



3.   RAMPRATAP    S/O    GAYAPRASAD
     FOUZDAR, AGED ABOUT 45 YEARS,
     OCCUPATION:     SERVICE     R/O
     BRAHMANVADA    SALGAPUR  DISTT.
     GADARWARA NARSINGHPUR (MADHYA
     PRADESH)



4.   RAMLATA     W/O     RADHESHYAM
     MURGAYYA, AGED ABOUT 71 YEARS,
     OCCUPATION:    HOUSEWIFE    R/O
     VILLAGE KHIRYA, TAHSIL KARELI,
     DISTRICT NARSINGHPUR   (MADHYA
     PRADESH)



5.   GANGABAI W/O JAGDISH CHOUBEY,
     AGED ABOUT 58 YEARS, OCCUPATION:
     HOUSEWIFE R/O KHUSIWADA, TEHSIL
     GOTEGAON, DISTRICT NARSINGHPUR
     (MADHYA PRADESH)



6.   JAMNA    BAI   W/O   SHOBHARAM
     UPMANNEW, AGED ABOUT 55 YEARS,
     OCCUPATION:    HOUSEWIFE    R/O
     KOSAMKHEDA,         NARSINGHPUR
     (MADHYA PRADESH)



7.   SUMAN BAI W/O RAMDAS SIVARIYA,
     AGED ABOUT 50 YEARS, OCCUPATION:
     HOUSEWIFE R/O MAHARAJPUR, DEVRI,
     DISTRICT SAGAR (MADHYA PRADESH)
                                     3                      S.A. No.333/2019



8.   STATE OF MADHYA PRADESH THR.
     COLLECTOR      DISTT-NARSINGHPUR
     (MADHYA PRADESH)



                                                         .....RESPONDENTS
(MS. PAPIYA GHOSH - PANEL LAWYER FOR RESPONDENT NO.8/ STATE)
.........................................................................................................

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

following:

                               JUDGMENT

This Second Appeal has been filed under Section 100 of CPC against the judgment and decree dated 31.10.2018 passed by 3rd Additional District Judge, Gadarwara, District Narsinghpur (M.P.) in RCA No.30/2014 arising out of judgment and decree dated 29.03.2014 passed by Civil Judge, Class-I, Gadarwara, District Narsinghpur in Civil Suit No.71-A/2012.

2. The facts necessary for disposal of the present appeal in short are that the appellants/plaintiffs filed a suit in respect of Khasra Nos.137/1, 137/2, 137/3, 137/4, 141, 143, 145, 195 total area 3.732 hectares situated in village Bamanwada, Tahsil Gadarwara and Khasra Nos.13/3, 13/4, 14/5 and 14/6 total area 2.129 hectares situated in village Salgapur, Tahsil Gadarwar, District Narsinghpur, thereby seeking declaration that they have 1/7th share in the same as well as for possession and the mesne profit.

3. The undisputed facts are that Ramkishore Fauzdar had three sons including Ramdeen. The plaintiff No.1 is the widow of Ramdeen, whereas the plaintiffs No.2 and 3 are the sons of Ramdeen. Ramdeen has already expired. It is the case of the plaintiffs that Ramkishore was the Karta of the

family. Ramkishore is the son of Late Gayaprasad, whose ancestral property was situated in village Karapgaon. 16 acres of land is in the name of Ramkishore. The said land was purchased by Ramkishore by registered sale deeds. However, the aforesaid property was purchased out of the proceeds of the ancestral property of Gayaprasad. It was the case of the plaintiffs that the properties have not been partitioned so far and they are still ancestral in nature. The husband of the plaintiff No.1 was working in the Electricity Department and he died during his service period. Thereafter, the plaintiffs were frequently visiting their HUF and were also getting the crop etc. earned from the ancestral property. Ramkishore was always assuring that since he is alive therefore, he would partition the land in equal share during his lifetime. It was claimed that in the last year, when the plaintiffs came to village Bamanwada, then Ramkishore/defendant No.1 was requested to give their share in the ancestral property but he refused to do so. The defendants started claiming that they have got the lands recorded in their name and the plaintiffs were turned out of the village. Thereafter, the plaintiffs collected the revenue records and came to know that the lands in dispute have been mutated in the name of the defendants No.2 and 3, whereas the said mutation was got done by the defendant No.1 Ramkishore without taking all the legal representatives into confidence. The plaintiffs have 1/7th share in the property and accordingly, the suit was filed for declaration that they have 1/7th share in the property, for partition, separate possession as well as for mesne profit.

4. The defendants No.1 to 7 filed their written statement and claimed that the plaintiffs and the defendants are not the members of HUF. They are in possession of their self acquired property. The defendant No.1/Ramkishore had never given any crop to the plaintiffs nor had ever assured partition. Gayaprasad had three sons, namely; Shyamcharan,

Ramkishore and Prabhusharan. Shyamacharan has two sons, namely; Rammilan and Ramsahawan. The land which is standing in the name of Ramsahawan was received by him from the family of his mother about 20 years back. Ramkishore had purchased the land in the names of his sons Ramsubhas and Rampratap out of his own individual income. The husband of the plaintiff No.1 had already separated after taking his share. Ramkishore are three brothers and they, after alienating the property situated in village Karapgaon, have divided the share amongst themselves. Ramkishore does not have any ancestral property and the land in question is a self acquired property of Ramkishore. Ramkishore is an old person and therefore, the plaintiffs by pressurizing him are trying to grab money from him.

5. The Trial Court after framing issues and recording evidence, dismissed the suit.

6. Being aggrieved by the judgment and decree passed by the Trial Court, the appellants preferred an appeal, which too has been dismissed but on different grounds.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellants that the First Appellate Court has wrongly interpreted and violated the provisions of Hindu Succession Act in its letter and spirit. The First Appellate Court wrongly came to a conclusion that the plaintiffs are not entitled for partition and separate possession even after holding that the properties are joint Hindu Family Property and accordingly, proposed the following substantial question of law:

"1. Whether the impugned judgment and decree regarding partition and separate possession by the

plaintiffs is perverse or not?

2. Whether the judgment of the court below has been passed without proper application of judicial mind with respect to the legal position and law of succession and partition?

3. Whether the learned First Appellate Court passed the impugned judgment and thereby wrongly interpreted and violated provisions of Hindu Succession Act in letters and spirit?

4. Whether the learned First Appellate Court wrongly came to a conclusion that the plaintiffs are not entitled for partition and separate possession even when the properties are declared to be joint Hindu Family property.

5. Whether the First Appellate Court wrongly held that the plaintiffs are not entitled to claim partition and separate possession till the Karta dies intestate?

6. Whether the First Appellate Court wrongly held that a son is entitled to a share in property only after death of his father?

7. Whether the First Appellate Court wrongly came to a conclusion that the plaintiffs are not entitled for 1/7 share and possession on the ancestral property even if the status of the family is joint no earlier partition took place in the family?"

8. Heard the learned counsel for the appellants.

9. The undisputed fact is that the suit for partition has been filed during the lifetime of Ramkishore. The moot question for consideration is as to whether the suit for partition, separate possession was maintainable during the lifetime of Ramkishore or not?

10. The undisputed fact is that Ramdeen is the husband of the plaintiff No.1 and father of the plaintiffs No.2 and 3. Ramdeen is one of the sons of Ramkishore and Ramdeen has already expired. Now the question for consideration is as to whether the suit for partition, separate possession filed by the widow daughter-in-law and the grandsons was maintainable against Ramkishore during his lifetime or not? None of the parties have led evidence with regard to the date of birth of Ramdeen. It is not known as to whether Ramdeen was born prior to 1956 or not? The age of Premlata/plaintiff No.1 was shown to be 51 years on the date of institution of suit, i.e. 25.06.2012. If a date of birth is calculated on the basis of her age disclosed in the plaint, then it is clear that she must have born some times in the year 1961. It is not the case of the plaintiffs that she was more than 6 years younger to her husband. The Hindu Succession Act, 1956, came into force in the year 1956.

11. The Supreme Court in the case of Uttam Vs. Saubhag Singh and others reported in (2016) 4 SCC 68 has held as under:-

"18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu

Agalawe [(1988) 2 SCC 126], Sheela Devi v. Lal Chand [(2006) 8 SCC 581] and Rohit Chauhan v. Surinder Singh [(2013) 9 SCC 419 : (2013) 4 SCC (Civ) 377] were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:

(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who

claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.

(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self- acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants."

12. The Supreme Court in the case of Sheela Devi and others Vs. Lal Chand and another reported in (2006) 8 SCC 581 has held as under:-

"18. We may, however, notice that the same learned Judge in CWT v. Chander Sen [(1986) 3

SCC 567 : 1986 SCC (Tax) 641] in a case where the father and his son constituted a HUF and had been carrying on business in a partnership firm, stated the law in the following terms: (SCC p. 577, paras 20-22) "20. We have noted the divergent views expressed on this aspect by the Allahabad High Court, Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the Gujarat High Court on the other.

21. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act

makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-à- vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son, etc."

19. In para 15, however, the law was stated as under: (SCC pp. 573-74) "15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is: Is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that

Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view."

The said decision has been followed by this Court in CIT v. P.L. Karuppan Chettiar [1993 Supp (1) SCC 580] and CIT v. M. Karthikeyan [1994 Supp (2) SCC 112] .

20. In Eramma v. Verrupanna [(19

66) 2 SCR 626 : AIR 1966 SC 1879] this Court observed: (SCR p. 629 E-F) "It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e. where succession

opened before the Act, Section 8 of the Act will have no application."

(See also Daya Singh v. Dhan Kaur [(1974) 1 SCC 700] .)

21. The Act indisputably would prevail over the old Hindu law. We may notice that Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted the Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of the Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, the proviso appended to sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal viz. Lal Chand, was, thus, a coparcener. Section 6 is an exception to the general rules. It was, therefore, obligatory on the part of the respondent-plaintiffs to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son, Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of the Hindu Succession Act, 1956."

13. The Supreme Court in the case of Yudhishter Vs. Ashok Kumar reported in (1987) 1 SCC 204 has held as under:-

"10. This question has been considered by this Court in CWT v. Chander Sen [(1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn., at p. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High

Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

14. Section 4 of the Hindu Succession Act provides for over-riding effect of the Act on any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act being inconsistent with the provisions of the Act.

15. A Co-ordinate Bench of this Court in the case of Chandrakanta and another Vs. Ashok Kumar and others reported in (2002) 3 MPLJ 576 has held as under:-

"5. The Supreme Court has considered the impact of Hindu Succession Act 1956 in its judgment in the case of Commissioner of Wealth-tax, Kanpur etc. v. Chander Sen etc., (1986) 3 SCC 567 : AIR

1986 SC 1753, and has held as under:--

"19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

20. In view of the Preamble to the Act i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not includes son's son but does include son of a predeceased son, to say, that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would be applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8."

6. The Supreme Court in its judgment in the case of Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 : AIR 1987 SC 558, has again considered the question and has held as under:--

"10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : AIR 1986 SC 1753, where one of us (Sabysachi Mukharji, J.) observed that under the Hindu Law; the moment a son is born,

he gets a share in father's property and becomes part of the coparcanary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by section 8 of the Hindu Succession Act 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity."

7. In view of the aforesaid pronouncements, it is clear that after coming into force of the Hindu Succession Act, the theory of birthright does not exist and son gets share in the property only after death of his father."

16. Since the plaintiffs are the widow and sons of Ramdeen, therefore at the most they can claim to the extent of share of their husband/ father. During the lifetime of Ramkishore, the suit filed by the plaintiffs was not maintainable as they can claim succession only in accordance with Section 8 of the Hindu Succession Act, 1956 and that too when the Karta of the family dies intestate.

17. It is next contended by the counsel for the appellants that now during the pendency of this Appeal, Ramkishore has expired and therefore, the judgment and decree passed by the First Appellate Court may be set aside and may be remanded back to the said Court to decide it afresh in the light of the changed circumstances.

18. Considered the submissions made by the counsel for the appellants.

19. The moot question for consideration is as to whether the suit, which was filed in the year 2012, was maintainable or not? Merely because Ramkishore has expired during the pendency of this appeal, would not make the Civil Suit maintainable.

20. Accordingly, no substantial question of law arises in the present Appeal.

21. Ex-consequenti, the judgment and decree dated 31.10.2018 passed by 3rd Additional District Judge, Gadarwara, District Narsinghpur (M.P.) in RCA No.30/2014 as well as judgment and decree dated 29.03.2014 passed by Civil Judge, Class-I, Gadarwara, District Narsinghpur in Civil Suit No.71-A/2012 are hereby affirmed.

22. The Appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.03.21 14:36:13 +05'30'