Madhya Pradesh High Court
Jagdish Chandra vs Chandrakant on 4 October, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 2822 of 2022
BETWEEN:-
JAGDISH CHANDRA S/O CHHAGANLAL SATYA,
AGED ABOUT 64 YEARS, OCCUPATION: BUSINESS
R/O: VILLAGE GOGAWA, TEHSIL GOGAWA,
DISTRICT: KHARGONE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AVINASH YADAV - ADVOCATE)
AND
1. CHANDRAKANT S/O CHHAGANLAL SATYA,
AGED ABOUT 52 YEARS, OCCUPATION:
SERVICE, R/O VILL. GUJRI CHOUK, TEHSIL
GOGAWA, DISTRICT: KHARGONE
(MADHYA PRADESH)
2. BHARAT S/O CHHAGANLAL SATYA, AGED
ABOUT 47 YEARS, OCCUPATION: SERVICE,
R/O: MUKTANAND PARISAR, FIRST GALI,
DHAMNOD TEHSIL DHARAMPURI
DISTRICT DHAR (MADHYA PRADESH)
3. SMT. LALITA BAI W/O VISHWANATH
SATYA, AGED ABOUT 47 YEARS,
OCCUPATION: HOUSEWIFE, R/O: VILLAGE
GUJRI CHOUK GOGAWA TEHSIL GOGAWA
DISTRICT KHARGONE (MADHYA
PRADESH)
4. AJAY S/O VISHWANATH SATYA, AGED
ABOUT 42 YEARS, OCCUPATION: MEDICAL
STORE, R/O: VILLAGE GUJRI CHOUK
GOGAWA TEHSIL GOGAWA DISTRICT
KHARGONE (MADHYA PRADESH)
5. NEERAJ S/O VISHWANATH SATYA, AGED
ABOUT 37 YEARS, OCCUPATION: SERVICE
R/O: VILLAGE GUJRI CHOUK GOGAWA
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 04-10-2023
17:03:38
2
TEHSIL GOGAWA DISTRICT KHARGONE
(MADHYA PRADESH)
6. DHEERAJ S/O VISHWANATH SATYA, AGED
ABOUT 32 YEARS, OCCUPATION: BUSINESS
R/O; VILLAGE GUJRI CHOUK GOGAWA
TEHSIL GOGAWA DISTRICT KHARGONE
(MADHYA PRADESH)
7. SMT. SHEELA D/O CHHAGANLAL SATYA
W/O JAGDISHCHANDRA SAAH, AGED
ABOUT 59 YEARS, OCCUPATION:
HOUSEWIFE, R/O: VILLAGE PALSUD
DISTRICT BARWANI (MADHYA PRADESH)
8. SMT. SUDHA D/O CHHAGANLAL SATYA
W/O SHRIKRISHNA GUPTA, AGED ABOUT
42 YEARS, OCCUPATION: HOUSEWIFE, R/O
- KUKSHI, TEHSIL KUKSHI DISTRICT DHAR
(MADHYA PRADESH)
9. STATE OF M.P. THR. COLLECTOR OFFICE
OF COLLECTORATE DISTRICT KHARGONE
(MADHYA PRADESH)
.....RESPONDENTS
Reserved on :- 22.08.2023
Pronounced on :- 04.10.2023
__________________________________________________________________
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 the plaintiff
being aggrieved by the judgment and decree dated 07.09.2022 passed in Civil
Appeal No.48/2019 by the Ist District Judge, Khargone, District Mandleshwar
arising out of the judgment and decree dated 21.10.2019 passed in Civil Suit
No.26-A/2017 by the IIIrd Civil Judge, Class-I, Khargone (East Nimar).
2. The following genealogical tree shows relationship between the parties:-
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NAGDEVE
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Chhaganlal
| (Dead)
Smt. Rampyari Bai
(Died 21.07.2006)
Jagdish Chandrakant Bharat Vishwanath Sheela Sudha
(Plaintiff) (Def. No.1) (Def. No.2) (Dead) (Def. No.8) (Def. No.9)
= Lalita
(Def. No.4)
Ajay Neeraj Dheeraj
(Def No.5) (Def No.6) (Def No.7)
3. As per the plaintiff, the joint family of the parties held considerable joint
family property situated at various villages. On 15.05.1996, an oral partition of the
same was effected between them in which they were allotted different properties
by way of their share. On 30-05-1996 a partition deed in terms of the oral partition
was also executed between the parties. In the deed, it had been stipulated that the
properties being allotted to Smt. Rampyari Bai would devolve upon the person
who shall look after her during her lifetime. The plaintiff did so and also performed
her last rites hence succeeded to the property allotted to her share. Upon death of
Smt. Rampyari Bai, plaintiff and defendants are jointly recorded over her property
in the revenue records but recording of defendants over the same is without any
right or authority and he deserves to be recorded over the same exclusively. He
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NAGDEVE
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requested the defendants for the same but defendant No.1 has denied his title to the
said property.
4. Contending aforesaid, the plaintiff instituted an action for declaration of
his title to the suit lands bearing Khasra No.56/1 Ka and 57/2 area 1.131 hectare,
Gram Shahpura, Tehsil Gongawa, District Khargone, for possession of the same,
for damages and mesne profits contending that the same are a part of the property
allotted to Smt. Rampyaribai.
5. Defendant No.1 contesting the plaintiff's claim by filing his written
statement submitting that he is the sole owner of the suit lands. The plaintiff never
took care of Smt. Rampyari Bai and instead tortured her. It is he who looked after
her hence upon her death, the suit lands have been inherited by him exclusively
and he is in possession thereof.
6. The Trial Court held that on 30.05.1996, a partition of the joint family
property was effected between the parties in which the suit lands had been allotted
to the share of Smt. Rampyari Bai. As per the partition deed upon her death the
same were to devolve upon the person who would take care of her during her
lifetime. The plaintiff did the same hence upon her death has become the owner of
the suit lands. In consequence, plaintiff's claim for declaration of title and
possession was decreed.
7. In appeal by defendant No.1, the lower appellate Court has held that as
per the partition deed 30.05.1996 all the members of the family were allotted
shares in the joint family property. The property which was allotted to Smt.
Rampyari Bai was by way of a limited estate and the manner in which the same
would devolve upon her death had been stipulated therein. However, in view of
Section 14(2) of the Hindu Succession Act, 1956, ('the Act, 1956') the property
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NAGDEVE
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became her absolute property and she was its sole owner. Upon her death, the same
would devolve as per Section 15 and 16 of the Act, 1956. Thus, plaintiff,
defendants No.1, 2, 3, 7 and 8 and heirs of Vishwanath jointly inherited 1/6 th share
each therein. In consequence, the judgment and decree passed by the trial Court
has been set aside. It has however been held that the decree shall not effect rights
of plaintiff for seeking partition in respect of his 1/6th share in property of Smt.
Rampyari Bai.
8. Learned counsel for the appellant has submitted that the lower appellate
Court has grossly erred in setting aside the judgment and decree passed by the
Trial Court. The conditions imposed upon the parties in the partition deed dated
30.05.1996 (Exhibit P-5) have been failed to be given due effect to which were
binding upon them. It was provided therein that the property falling to Smt.
Rampyari Bai would be held by her during her lifetime and upon her death would
devolve upon the person who would take care of her during her lifetime. The
plaintiff has proved that he did so hence upon her death became the sole owner of
the suit lands. The finding of the trial Court to that effect has not even been set
aside. The lower appellate Court has passed a decree for partition whereas none of
the parties had claimed such a relief hence the decree is beyond the reliefs claimed
for. It is hence submitted that the judgment and decree passed by the lower
appellate Court be set aside.
9. I have considered the submissions of learned counsel for the appellant.
10. It is not in dispute that an oral partition of the joint family properties was
effected between the parties on 15.05.1996 and subsequently a partition deed in
terms thereof was also executed between them on 30.05.1996. Thereunder, the
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NAGDEVE
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parties were allotted different properties by way of their respective shares. The
property allotted to Smt. Rampyari Bai with stipulations was as under:-
"ररामपपपराररीबराईपबबेबरापछगनलरालपकबेपहहिसपसबेपककीपसमपम्पतत:-
1. गगुजररीपचचौक, धमर्मशरालरापकबेप सरामनबेप वरालरापमकरान, ररामपपपराररीपबराईपकबेप जजीतवत
रहिनबेप तकप उनकबेप उम्पभभोगप ममेंप रहिबेगरा, ममृतपपगुप कबेप म्पशपचरात तप सदरप मकरानप भराई
जगदरीशपकभोपहहिसपसबेपममेंपरहिबेगरा।
2. ररामपपपराररीबराईपकभोपकगुलप4-00 ए. जमजीनपहहिसपसबेपममेंप रहिबेगजी, इसममेंपतजीनपए.
जमजीनपउनककीपममृतपपगुप उम्पररानपतपउनककीपसबेवरापकरनबेप वरालबेप कभोपममलबेगजीपतथराप एक
ए. जमजीनपभराईपभरतपकभोपममलबेगजी।
3. भरामकगुऑपवरालजीपजमजीनपजभोपलगभगप4-65 ए. हिहैप तथरापबराहिरपवरालजीप6-50
ए. हिहैप लकपमजीनराररापणप सतपपबेप कबेप म्परासप ममेंप ससथतप हिहैप सजतबेजजीप म्पपूणर्मप रूम्पप सबे
ररामपपपराररीबराईपकबेप उम्पभभोगपहिबेतगुप रहिबेगजीपतथरापइसजीपखबेतप ककीप आमदनजीपसबेप उसकरा
मनवरार्महिप खचर्मप चलरापबेगजी।प ररामपपपराररीप बराईप ककीप ममृतपपगुप कबेप म्पशपचरातप पबेप जमजीनप करा
सपवतपवपमनमपनरानगुसरारपरहिबेगराप:-
भराईपजगदरीशपकभोप3-00 ए. भरामकगुऑऑंपककी।
भराईपच्रनपन्द्रकरानपतपकभोप 4-00 ए. बराहिरपवरालजीपम्पराटरीपलकपमजीनराररापणपकराकराजजीपकबे
म्परासपककी।
बचजीपहिगुईप4-00 ए. ममेंप सबेप 3-00 ए. ररामपपपराररीपबराईपककीपसबेवरापकरनबेप वरालबेप कभो,
तथरापएकपए. भराईपभरतपकभोपममलबेगजी।
तवशपवनराथपवपजगदरीश, बराजरारपभरावपसबेपआधबेपए; जमजीनपकबेपम्पहैसबेपभराइपभरतपकभो
दबेवबेगबे।
सनराबदप रभोड, थरानबेप कबेप सरामनबे, म्पकपककीप दक
गु रानप ममेंप सबेप एकप चशपमराप दक
गु रान
ररामपपपराररीप बराईप ककीप रहिबेगजीप एवऑंप इनककीप ममृतपपगुप कबेप उम्पररानपतप भराईप जगदरीशप कभो
उसम्परपम्पपूररापहिकपकपरहिबेगरा।"
11. Smt. Rampyari Bai though was allotted the aforesaid property but the
same was only by way of a restricted estate and full ownership was not conferred
upon her. It was provided that upon her death the property would devolve in the
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NAGDEVE
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manner as detailed therein meaning thereby that during her lifetime she was to be
the limited owner and could enjoy the property but had no power of disposition etc.
over the same. This condition would however be governed by the provisions of
Section 14(1)(2) of the Act, 1956 which are as under:-
"14. Property of a female Hindu to be her absolute property.--(1) Any
property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner thereof and
not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and
immovable property acquired by a female Hindu by inheritance or devise, or
at a partition, or in lieu of maintenance or arrears of maintenance, or by
gift from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription,
or in any other manner whatsoever, and also any such property held by her
as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or under a
decree or order of a civil court or under an award where the terms of the
gift, will or other instrument or the decree, order or award prescribe a
restricted estate in such property."
12. The aforesaid provisions have been exhaustively explained by the
Supreme Court in Veddeboyina Tulsamma and Others Vs. Vaddeboyina Sesha
Reddi (dead) through Lrs, AIR 1977 Supreme Court 1944 as under:-
"3. .........It will, therefore, be seen that sub-section (1) of Section 14 is
large in its amplitude and covers every kind of acquisition of property by a
female Hindu including acquisition in lieu of maintenance and where
such property was possessed by her at the date of commencement of the
Act or was subsequently acquired and possessed, she would become the
full owner of the property.
4. ...........The language of Sub-Section (2) is apparently wide to include
acquisition of property by a Hindu female under an instrument or a
decree or order or award where the instrument, decree, order or award
prescribes a restricted estate for her in the property and this would
apparently cover a case where property is given to a Hindu female at a
partition or in lieu of maintenance and the instrument, decree, order or
award giving such property prescribes limited interest for her in the
property.......
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NAGDEVE
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............ Sub-Section (2) must, therefore, be read in the context of
Sub-Section(1) so as to leave as large a scope for operation as possible to
Sub-Section (1) and so read, it must be confined to cases where property is
acquired by a female Hindu for the first time as a grant without any pre-
existing right, under a gift, will, instrument, decree, order or award, the
terms of which prescribe a restricted estate in the property...........
.........the legislative intendment was that Sub-Section (2) should be
applicable only to cases where acquisition of property is made by a Hindu
female for the first time without any pre-existing right - a kind of
acquisition akin to one under gift or will. Where, however, property is
acquired by a Hindu female at a partition or in lieu of right of
maintenance, it is in virtue of a pre-existing right and such an acquisition
would not be within the scope and ambit of Sub-Section (2), even if the
instrument, decree, order or award allotting the property prescribes a
restricted estate in the property."
13. Thus, when property is acquired by a Hindu female at a partition or in
lieu of right of maintenance, it is in virtue of pre-existing right and such an
acquisition would not be within the scope and ambit of Sub-Section (2) of Section
14 of the Act, 1956 even if the instrument allotting the property prescribes a
restricted estate in the property. She would be deemed to have become the full
owner thereof notwithstanding that the instrument under which the same was given
to her prescribed a limited estate for her. She would have a restricted estate only
when property is acquired by her for the first time without any pre-existing right
under an instrument the terms of which prescribe a limited estate for her in the
property.
14. In the present case, Smt. Rampyari Bai was allotted certain joint family
property by way of her share in the partition effected in the family. She had a pre-
existing right/share in the property and by way of partition, a specific part of the
same was allotted to her. Since she had a pre-existing right in the joint family
property which was crystallized by way of allotment of her share therein in the
partition, she acquired her property not by way of a restricted estate but by way of
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absolute ownership. Upon her death, the same would not devolve as per the
condition stipulated in the partition deed but would devolve by way of succession
as per Section 15 and 16 of the Act, 1956 since no will or any other testamentary
instrument was executed by her during her lifetime. The lower appellate Court has
hence rightly held to the said effect.
15. In the decree passed by the lower appellate Court it has only been
observed that it shall not effect rights of plaintiff for seeking partition in respect of
his 1/6th share in property of Smt. Rampyari Bai. Under the decree, no partition has
been directed as has been contended by learned counsel for the appellant. In any
case, no decree whatsoever as regards partition has been passed in favour of the
defendants.
16. In view of the above, I do not find that the lower appellate Court has
committed any error of law in passing the impugned judgment and decree. The
same are based upon a true and correct appreciation of the facts of the case and
application of relevant legal principles applicable thereto. No fault can be found
with the findings or the reasonings of the lower appellate Court. The appeal is
found to be devoid of merits and is accordingly dismissed in limini.
(PRANAY VERMA)
JUDGE
Shilpa
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 04-10-2023
17:03:38
