Madhya Pradesh High Court
Bhanwarlal S/O Shri Kaniram ... vs Smt Manobai on 14 March, 2023
Author: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
A T I N D OR E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 2671 of 2022
BETWEEN:-
1. BHANWARLAL S/O SHRI
KANIRAM DECEASED
THROUGH LEGAL
REPRESENTATIVES
CHHOTELAL S/O
BHANWARLAL, AGED
ABOUT 45 YEARS,
VILLAGE GADIYA, TEHSIL
NARSINGHGARH
DISTRICT RAJGARH
(MADHYA PRADESH)
2. BHANWARLAL S/O SHRI
KANIRAM DECEASED
THROUGH LEGAL
REPRESENTATIVES
BHAGCHAND S/O
BHANWARLAL, AGED
ABOUT 45 YEARS, R/O
VILLAGE GADIYA TEHSIL
NARSINGHGARH DISTT.
RAJGARH (MADHYA
PRADESH)
3. BHANWARLAL S/O SHRI
KANIRAM DECEASED
THROUGH LEGAL
REPRESENTATIVES
GENDIBAI D/O
BHANWARLAL, AGED
ABOUT 50 YEARS, R/O
VILLAGE KISHORPURA
TEHSIL NARSINGHGARH
DISTT. RAJGARH
(MADHYA PRADESH)
4. BHANWARLAL S/O SHRI
KANIRAM DECEASED
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
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THROUGH LEGAL
REPRESENTATIVES
MANOBAI D/O
BHANWARLAL, AGED
ABOUT 42 YEARS, R/O
VILLAGE KISHORPURA
CHARPURA TEHSIL
NARSINGARH DISTT.
RAJGARH (MADHYA
PRADESH)
5. BHANWARLAL S/O SHRI
KANIRAM DECEASED
THROUGH LEGAL
REPRESENTATIVES
LAXMIBAI D/O
BHANWARLAL, AGED
ABOUT 38 YEARS, R/O
VILLAGE SHANKARPURA
TEHSIL NARSINGHGARH
DISTT. RAJGARH
(MADHYA PRADESH)
6. BHANWARIBAI W/O
BALRAM, AGED ABOUT 70
YEARS, OCCUPATION:
AGRICULTURIST R/O
VILLAGE GADIYA TEHSIL
NARSINGHGARH DISTT.
RAJGARH (MADHYA
PRADESH)
7. CHANDANSINGH S/O
BALRAM, AGED ABOUT 43
YEARS, OCCUPATION:
AGRICULTURIST R/O
VILLAGE GADIYA TEHSIL
NARSINGHGARH DISTT.
RAJGARH (MADHYA
PRADESH)
8. GYARSIBAI D/O BALRAM,
AGED ABOUT 50 YEARS,
OCCUPATION:
AGRICULTURIST VILLAGE
GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
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9. DALI BAI D/O BALRAM,
AGED ABOUT 48 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
10. SUGANABAI D/O BALRAM,
AGED ABOUT 46 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
11. BHAGOABAI D/O BALRAM,
AGED ABOUT 44 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
12. CHHOTIBAI D/O BALRAM,
AGED ABOUT 42 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
13. KALLOBAI D/O BALRAM,
AGED ABOUT 40 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
14. BHURIBAI D/O BALRAM,
AGED ABOUT 38 YEARS,
OCCUPATION:
AGRICULTURIST VILLAGE
GADIYA TEH.
NARSINGHGARH
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI Z.A. KHAN - SENIOR ADVOCATE WITH SHRI VIKRAM BHATNAGAR -
ADVOCATE )
AND
1. SMT MANOBAI W/O
JAIRAM, AGED ABOUT 60
YEARS, VILLAGE GADIYA,
TEHSIL NARSINGHGARH ,
DISTRICT RAJGARH
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
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(MADHYA PRADESH)
2. GHANSHYAM W/O JAIRAM,
AGED ABOUT 40 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
3. BABLOO S/O JAIRAM, AGED
ABOUT 30 YEARS, VILLAGE
GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
4. BASANTIBAI D/O JAIRAM,
AGED ABOUT 27 YEARS,
VILLAGE GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
5. GUDDIBAI W/O
VISHNUPRASAD, AGED
ABOUT 31 YEARS, VILLAGE
GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
6. RAJKUMAR MINOR
THROUGH NATURAL
GUARDIAN MOTHER
GUDDIBAI W/O
VISHNUPRASAD, AGED
ABOUT 31 YEARS, VILLAGE
GADIYA
TEH.NARSINGHGARH
(MADHYA PRADESH)
7. SAPNA MINOR THROUGH
NATURAL GUARDIAN
MOTHER GUDDIBAI W/O
VISHNUPRASAD, AGED
ABOUT 31 YEARS, VILLAGE
GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
8. PRIYA MINOR THROUGH
NATURAL GUARDIAN
MOTHER GUDDIBAI W/O
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
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VISHNUPRASAD VILLAGE
GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
9. ABHISHEK MINOR
THROUGH NATURAL
GUARDIAN MOTHER
GUDDIBAI W/O
VISHNUPRASAD, AGED
ABOUT 31 YEARS, VILLAGE
GADIYA TEH.
NARSINGHGARH (MADHYA
PRADESH)
10. STATE OF M.P. THROUGH
COLLECTOR RAJGARH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAURAV SINGH CHOUHAN - DEPUTY GOVERNMENT ADVOCATE FOR
RESOPNDENT NO.10 )
Reserved On : 20.01.2023
Pronounced on : 14.03.2023
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
This appeal under Section 100 of the CPC has been preferred by
defendants No.1 to 10 against the judgment and decree dated 23.09.2022
passed in RCA No. 139/2019 by the Ist Additional District Judge,
Narsinghgarh, District Rajgarh arising out of the judgment and decree dated
29.04.2019 passed in RCS No.3/2018 by the Ist Civil Judge, Class-I
Narsinghgarh, District Rajgarh.
2. For the purpose of understating the dispute between the parties their
genealogical tree is material which is as under :
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
Kaniram (Dead)
Dalibai (Dead)
Bhanwarlal (Defendant No.1) Balram (dead) Jairam (dead)
= Bhawaribai (02) = Manobai(P1)
Ghanshyam(P2), Babloo(P3), Basantibai(P4),
Guddibai (P5), Rajkumar(P6), Sapna (P7),
Priya (P8), Abhishek (P9)
Chandansingh(Def 3), Gyarshibai (Def 4), Dalibai (Def 5), Suganabai (Def 6), Bhagoabai
(Def 7), Chhotibai (Def 8), Kallobai (Def 9), Bhuribai (Def 10).
3. The plaintiffs, heirs of deceased Jairam, instituted an action for
declaration, partition and delivery of separate possession of their 1/3 rd share in
the suit lands. They submitted that the suit lands are ancestral lands of the
parties but their proceedings for partition in respect of the same have been
illegally dismissed by the revenue Courts who have directed them to approach
the Civil Court in view of dispute as regards title. It was submitted that upon
death of Kaniram, his son Jairam and after him the plaintiffs have 1/3 rd share
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
in the suit lands but defendants have been illegally recorded over 3/4 th of the
same.
4. The defendants contested the plaintiffs' claim by filing their written
statement generally denying all the pleas as raised by plaintiffs therein and
submitted that the suit as framed is not maintainable and the Civil Court has no
jurisdiction to hear the same.
5. The trial Court dismissed the plaintiffs' claim upon holding that they
have not adduced any evidence to show as to whether Jairam is presently alive
or not hence the shares of the parties cannot be worked out and declared.
The said judgment and decree has been reversed in appeal preferred by
plaintiffs by holding that heirs of Bhanwarlal would be having 1/3 rd share, heirs
of Balram would be having 1/3rd share and plaintiffs would be having 1/4th
share in the suit lands as heirs of Jairam and plaintiff Ghanshyam, Babloo and
Basantibai shall have equal shares in the remaining 1/12th share.
6. Learned counsel for the appellants has submitted that the judgment and
decree passed by the lower appellate Court is illegal and contrary to law. The
same has been passed in utter violation of Rule 2 of Section 16 of Hindu
Succession Act, 1956. It has been illegally held that 1/4 th share of Dalibai will
be divided equally among her son Bhawarlal, Balram and heirs of deceased son
Jairam. The share of deceased Dalibai would have to be equally divided into
three shares and not twelve shares as has been held.
7. I have heard the learned counsel for the appellants and have perused the
record.
8. Section 15 & 16 of Hindu Succession Act are as under :
15. General rules of succession in the case of female Hindus.--
(1) The property of a female Hindu dying intestate shall
devolve according to the rules set out in section 16,--
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her father
or mother shall devolve, in the absence of any son or daughter
of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-
section (1) in the order specified therein, but upon the heirs of
the father; and
(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased (including the
children of any pre-deceased son or daughter) not upon the
other heirs referred to in sub-section (1) in the order specified
therein, but upon the heirs of the husband.
16. Order of succession and manner of distribution among heirs
of a female Hindu.--The order of succession among the heirs
referred to in section 15 shall be, and the distribution of the
intestates property among those heirs shall take place according
to the following rules, namely:-- Rule 1.--Among the heirs
specified in sub-section
(1) of section 15, those in one entry shall be preferred to those
in any succeeding entry and those included in the same entry
shall take simultaneously. Rule 2.--If any son or daughter of
the intestate had pre-deceased the intestate leaving his or her
own children alive at the time of the intestate's death, the
children of such son or daughter shall take between them the
share which such son or daughter would have taken if living
at the intestate's death. Rule 3.--The devolution of the
property of the intestate on the heirs referred to in clauses (b),
(d) and (e) of sub-section (1) and in sub-section (2) to section
15 shall be in the same order and according to the same rules
as would have applied if the property had been the father's or
the mother's or the husband's as the case may be, and such
person had died intestate in respect thereof immediately after
the intestate's death.
9. From the pleadings of the parties and the material on record, it is an
admitted fact that Dalibai died subsequent to Kaniram and Kaniram was the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
original owner of the suit lands. Thus upon his death his widow Dalibai and all
his three sons namely Bhawarlal, Balram and Jairam inherited 1/4 th share each
in the suit lands. If it is presumed that Jairam had already expired at the time of
death of Kaniram, then his 1/4th share in the suit lands would be inherited by
his sons and daughters being his Class-I heirs under the Act, 1956. Share of
Jairam and/or his heirs, the plaintiffs, over 1/4th share in the suit lands thus
stood crystallized upon death of Kaniram.
10. The plaintiffs have specifically pleaded that Jairam has expired which
fact has not been denied by defendants in any manner hence there is no reason
to hold otherwise. Upon death of Dalibai her 1/4th share in the suit lands would
devolve as per Section 15 of the Act, 1956 firstly upon her sons and daughters
including children of any pre deceased son or daughter. Thus her 1/4 th share
would devolve upon Bhawarlal, Balaram and Jairam and if it is held that
Jairam had already expired at the time of her death, then upon his children i.e.
plaintiffs. The issue as to whether or not Jairam was alive on the date of death
of Dalibai is hardly of any significance since if he was alive he would inherit
1/3rd share of 1/4th share of Dalibai and if he was dead, then the same would
be inherited by plaintiffs who would in either case have total 1/3 rd share in the
entire suit lands.
11. Even as per Rule 2 of Section 16 of the Act, 1956 if Jairam is presumed
to have expired prior to Dalibai, since he left behind his own children alive at
the time of death of Dalibai, such children i.e. the plaintiffs shall take between
them the share which Jairam would have taken if living at the time of death of
Dalibai. Thus, the aforesaid Rule does not help the defendants in any manner
because as per the Rule itself the plaintiffs would inherit 1/3 rd share out of 1/4th
share of Dalibai in the suit lands even if it is assumed that Jairam was not alive
at the time of her death. The contention of defendants that share of Dalibai
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
would have to be divided into three shares and not twelve shares is wholly
misconceived as the division has not been done by the lower appellate Court in
that manner but has been done in accordance with Rule 2 of Section 16 relied
upon by learned counsel for defendants.
12. Though, 1/3rd out of 1/4th share of Dalibai would devolve upon all the
heirs of Jairam i.e. all the plaintiffs and not only upon three of them as has been
held by lower appellate Court, but in my opinion, the same is a matter inter se
the plaintiffs and none of the plaintiffs have challenged the judgment and
decree passed by lower appellate Court in so far as the said finding and decree
is concerned. Only for that reason the defendants would not acquire any right
to challenge the impugned decree.
13. Thus, the judgment and decree passed by the lower appellate Court
cannot be assailed by defendants on the grounds as have been raised by them in
this appeal. No substantial question of law arises for determination in this
appeal which is consequently dismissed in limine.
(PRANAY VERMA)
JUDGE
jyoti
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 14-Mar-23
5:06:25 PM
