Smt.Bhagwati Devi vs Pramod Kumar
2023 Latest Caselaw 17999 MP

       IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR

                           BEFORE

        HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

                 ON THE 27th OF OCTOBER, 2023

                  FIRST APPEAL NO. 63 of 2009
BETWEEN :-

      SMT.   BHAGWATI    DEVI   W/O
      LAXMINARAYAN, AGED ABOUT 41
      YEARS,           OCCUPATION:
      HOUSEWIFE,      R/O      NEAR
      TARAGANJ,   POLICE      CHOKI
      LASHKAR, GWALIOR (MADHYA
      PRADESH)

                                               .....APPELLANT
(BY SHRI N.K. GUPTA - SENIOR ADVOCATE ASSISTED BY SHRI S.D.S.
BHADOURIYA - ADVOCATE)

AND
1.    PRAMOD KUMAR S/O MANIRAM
      JHA, AGED ABOUT 23 YEARS, R/O
      VILLAGE    CHINOR,   DISTRICT
      GWALIOR (MADHYA PRADESH)
2.    RAKESH S/O MANIRAM JHA, AGED
      ABOUT 21 YEARS, R/O VILLAGE
      CHINOR,   DISTRICT  GWALIOR
      (MADHYA PRADESH)
3.    MUKESH S/O MANIRAM JHA R/O
      VILLAGE    CHINOR,   DISTRICT
      GWALIOR (MADHYA PRADESH)
4.    DR. HASANAND HOTANI R/O NEAR
         POLICE   CHOWKI,  TARAGANJ,
        LASHKAR, GWALIOR (MADHYA
        PRADESH)
5.      ASHIK KHAN R/O NEAR POLICE
        CHOWKI, TARAGANJ, LASHKAR,
        GWALIOR (MADHYA PRADESH)


                                                            .....RESPONDENTS

(BY SHRI S.P. JAIN - ADVOCATE)

     This appeal coming on for hearing this day, the court passed the
following:
                               JUDGMENT

1. This First Appeal has been filed under Section 96 of CPC arising out of judgment and decree dated 09.03.2004 passed by learned II nd Additional District Judge to the Court of District Judge Gwalior in civil suit No.8A/2003.

2. Appeal has been filed by the appellant/defendant-Smt. Bhagwati Devi on the ground that the plaintiffs/respondents No.1 to 3 filed a suit for partition and possession. In para 1 of the plaint, the pedigree of the plaintiffs and defendants ancestors were given and in para 2, it was pleaded that Laxmibai was the mother of plaintiffs, who was the daughter of Bhajanlal and real sister of appellant. Bhajanlal has died living behind one son Shivdayal and two daughters Laxmibai and Bhagwati Devi (defendant No.1). The plaintiffs are sons of Laxmibai, who died about 15 years ago and Shivdayal died issueless in the year 2000. The wife of Shivdayal died before Shivdayal, hence, plaintiffs are entitled for the partition of property left by Bhajanlal.

3. Bhajanlal has left one house situated at Taraganj, Lashkar Gwalior, in this house plaintiffs have half share and it was pleaded that notice was given to defendant No.1 for partition of the property but defendant denied the share of the plaintiffs, therefore, suit was filed.

4. It is further submitted that in the plaint, the plaintiffs claimed half property left by Bhajanlal and monetary benefits left by Shivdayal with his employer but as per the case of the plaintiff and provisions of Section 8 of Hindu Succession Act, the appellant is also an heir of Class (II) (IV) whereas the plaintiffs being a son of Shivdayal sister deceased Laxmibai falls in category (IV) of Class II hence, when heir of class II are available then class IV heirs are not entitled for any benefit of the property left by Shivdayal but the Court failed to appreciate Section 8 of Hindu Succession Act and has granted the decree. Plaintiffs are not entitled for service benefit and was not rightly paid by the employer of Shivdayal. The trial Court failed to appreciate that there are two separate successions one of Bhajanlal and second of Shivdayal.

5. A Will was executed by Shivdayal in favour of appellant and the same was filed as Ex.D/1. One attesting witness D/2 was also examined. The witness Sri Krishna in para 5 of the statement depose that on asking of Shivdayal, he had signed the Will, the document was read by the Advocate and Shivdayal was called for execution of the Will, hence, Will was proved and it was not cross-examined on the point that it did not have signature of Shivdayal but the trial Court did not found the Will to be genuine without any reason.

6. Under law of Wills, it is not required for the attesting witnesses to read the document. Late Shivdayal was suffering from asthama and it cannot be said that he was not in a fit state to execute the Will, therefore a prayer for setting aside the judgment and decree dated 09.03.2004 passed by learned II nd Additional District Judge Gwalior.

7. On the other hand, learned counsel for the respondents at the outset submits that as per para 25 of the impugned judgment dated 09.03.2004, 50% of the service benefits were granted to the plaintiff but he (respondents) are relinquishing that part of the decreetal benefits awarded to him but supports the rest part of the decree by which he was granted a decree for 50% of the suit house and 50% of the rent amount along with the decree not to transfer the suit property without partition.

8. Having heard learned counsel for the parties and perused the record of learned first appellate Court, the question before this Court is whether decree by which 50% share has been decreed to the respondent/plaintiff regarding suit house rent can be set aside on the ground that suit property was Willed by Ex.D/1 Will to the appellant/defendant and also on the ground of succession and Section 8 of Hindu Succession Act, 1956.

9. The trial Court framed the following issues and the findings given are as below:-

                      "okn&iz'u                                fu"d"kZ
1& D;k Lo- Hktuyky ,oa f'kon;ky dh e`R;q ds ckn mudh NksM+h        Þgk¡ß

gqbZ leLr leifRr ds mRrjkf/kdkjh ,oa Lokeh oknhx.k ,oa izfroknh Ø- 1 Øe'k% 1@2&1@2 Hkkx ds gq, \ Þfl) ughßa 2& D;k oknhx.k dh ek¡ y{ehckbZ dh e`R;q iwoZ esa gks tkus ls Hktuyky dh lEifRr lEiw.kZ :i ls mldh fo/kok ,oa mlds i'pkr mlds iq= f'kon;ky dks izkIr gks pqdh Fkh \ 3& ¼v½ D;k izfrokfnuh Øekad&1 dks Lo- f'kon;ky }kjk vius Þfl) ughßa

thoudky esa gh vius LoRo] LokfeRo ,oa vkf/kiR; dh lEiw.kZ lEifRr dk olh;rukek fnukad 09-08-2000 dks lEcaf/kr dj viuk okfjl o Lokeh cuk;k x;k gS \ ÞdqN ughaß ¼c½ ;fn gk¡ rks izHkko \ Þoknhx.k dk 4& lgk;rk ,oa O;; \" okn izfroknhx.k ds fo:) fu.kZ;

                                                                dh dz0 24 ds
                                                                vuqlkj    fMdzh
                                                                fd;k x;kß

10. Plaintiff has exhibited notice (Ex.P/1) sent to appellant regarding the suit property on 08.10.2001 and reply to the notice (Ex.P/2).

11. Defendant has exhibited unregistered Will (Ex.D/1) by Shivdayal in favour of Smt. Bhagwati Devi dated 09.08.2000. Plaintiff has produced PW-1 Pramod Kumar and defendant has produced himself and Sri Krishna Rajput as witnesses.

12. PW-1 Pramod Kumar in affidavit under Order 18 Rule 4 CPC has submitted that his Uncle (Late Shivdayal) never made a Will in favour of anyone. In cross-examination has denied that it was Bhagwati Devi, who used to take care of Shivdayal in his old age but in para 9 has accepted that after death of Shivdayal, Bhagwati is living in the disputed house.

13. Smt. Bhagwati Devi has deposed that after death of his father Bhajanlal, her property went to her brother Shivdayal as she and her sister Laxmibai had already got married. She used to take care of Shivdayal, therefore, on that ground he had Willed the suit property on 09.08.2000 to him. The Will (Ex.D/1) and reply (Ex.D/2) have been exhibited. In para 10 of cross- examination, she admitted that Bhajanlal in his lifetime never made any document giving property rights to his son Shivdayal or daughters Laxmibai and Bhagwati Devi. In para 11, she further admitted that she never saw any document regarding ownership of Shivdayal to the suit property. She does not know that in municipal corporation whether name of Shivdayal is entered in the revenue record or not and in para 14, she admitted that Will (Ex.D/1) in her favour was not executed before her. She never saw the document but later said that she saw the Will in a box but she does not know what is written in the Will. She further admitted that on the basis of Will (Ex.D/1) she moved for succession certificate in which she did not make sons of her sister Laxmi i.e. Pramod, Rakesh and Mukesh a party. In para 15, the defendant has further deposed as such:-

"f'kon;ky dks lk¡l dh chekjh Fkh os djhc nks rhu lky ls e`R;q ds iwoZ chekj FksA ;g ckr lgh gS] fd viuh chekjh ds nkSjku f'kon;ky th dqN le> ugha ikrs FksA"

14. Looking to the evidence of the defendant especially in para 15, it is held that regarding the Will her evidence is not of sterling quality, it does not inspire any confidence that whether the Will (Ex.D/1) is a genuine Will made in favour of appellant by a person (Shivdayal) of sound mind and with free consent. Evidence of defendant No.2 also does not help the appellant who allegedly attested the Will. Even witness Sri Krishna Rajput (DW-2) in para 4 of the affidavit deposes that Shivdayal was ill from a longtime, his illness was of serious nature. Again in para 6 of cross-examination, this witness has said :-

";g ckr lgh gS fd tc f'kon;ky chekj Fks rc os viuk vPNk Hkyk&cqjk lksp le> ugha ikrs FksA eSa jkeLo:i >k ls igys ls ifjfpr ugha Fkk] mlh le; ns[kk Fkk muds firk dk uke irk ugha gSA"

15. Therefore looking to the quality of evidence regarding the Will, this Court is of considered view that no fault can be found regarding the finding on the Will which has been disbelieved by the trial Court.

16. Shivdayal inherited the entire suit property from his father Bhajanlal to the exclusion of his sisters Late Laxmibai and Smt. Bhagwati Devi is also not proved. In para 14, the appellant had stated in the trial Court that she has filed a case for succession certificate but that succession certificate has not been produced before the trial Court. During the course of argument, learned counsel for the appellant submits that the suit house was not inherited by Shivdayal as he was the owner of the property in his own right and had Willed the property to appellant/defendant Bhagwati Devi. The Will (Ex.D/1) exhibited by Bhagwati mentions that the suit house property has been inherited by Shivdayal from his father Bhajanlal, therefore, this argument does not have any force. Even otherwise as per the judgment of Hon'ble Supreme Court in the matter of Vineeta Sharma Vs. Rakesh Sharma and Ors. (2020) 9SCC 1 in para 137-139 has held :-

"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 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 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."

17. It is not disputed that Bhajanlal died on 04.10.1981, therefore, succession to Laxmibai, who died after her father would arise. Accordingly, all grounds raised by the appellants are not proved under the fact and law, therefore, this appeal regarding house property being devoid of merit and is hereby dismissed. Regarding service benefit the respondent/plaintiffs have relinquished half share before this Court therefore, to that extent decree of trial Court stands modified.

18. Both the parties shall bear their own costs.

19. The decree be drawn up accordingly and record of the concerned Court be sent back alongwith copy of this judgment.

(AVANINDRA KUMAR SINGH) JUDGE Adnan

ADNAN HUSAIN ANSARI 2023.11.01 19:42:15 +05'30'