Mohanlal Tiwari vs Smt. Maya
2024 Latest Caselaw 5860 MP

Madhya Pradesh High Court

Mohanlal Tiwari vs Smt. Maya on 27 February, 2024

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                     BEFORE
                                      HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                           ON THE 27 th OF FEBRUARY, 2024
                                            SECOND APPEAL No. 406 of 2022

                           BETWEEN:-
                           1.    MOHANLAL TIWARI S/O LATE SHRI DARYAV
                                 BRAMHIN TIWARI, AGED ABOUT 57 YEARS,
                                 OCCUPATION: NIL R/O VILLAGE JAMUNYA,
                                 TAHSIL RAJNAGAR, DISTRICT CHHATARPUR,
                                 MADHYA PRADESH.

                           2.    AARTI W/O SHRI MOHANLAL TIWARI, AGED
                                 ABOUT    55  YEARS, OCCUPATION: NIL R/O
                                 VILLAGE    JAMUNIYA,  TEHSIL   RAJNAGAR,
                                 DISTRICT- CHHATARPUR, MADHYA PRADESH.

                                                                              .....APPELLANT
                           (BY SHRI SATISH KUMAR SHRIVASTAVA - ADVOCATE)

                           AND
                           1.    SMT. MAYA W/O SHRI SIYARAM DUBEY, AGED
                                 ABOUT 37 YEARS, OCCUPATION: NIL D/O SHRI
                                 BABU LAL TIWARI R/O BANDARGARH, TAHSIL
                                 RAJNAGAR, DISTRICT CHHATARPUR, MADHYA
                                 PRADESH.

                           2.    BRIJ KISHOR S/O LATE SHRI DARYAV BRAMHIN
                                 (TIWARI), AGED ABOUT 55 YEARS, OCCUPATION:
                                 NIL PARMANENT R/O VILLAGE JAMUNIYA,
                                 TEHSIL- RAJNAGAR, DISTRICT- CHHATARPUR,
                                 M.P. PRESENT R/O VILLAGE BARACH, TEHSIL
                                 DISTRICT- PANNA, MADHYA PRADESH.

                           3.    SMT. SUMITRA D/O DARYAV BRAMHIN (TIWARI)
                                 W/O SHRI MATADEEN PATHAK, AGED ABOUT 62
                                 YEARS, OCCUPATION: NIL R/O VILLAGE BARA,
                                 TEHSIL - RAJNAGAR, DISTRICT- CHHATARPUR,
                                 MADHYA PRADESH.

                           4.    SMT. RAJABAI D/O DARYAV BRAMHIN (TIWARI)
                                 W/O SHRI SUKKI PUROHIT, AGED ABOUT 60
                                 Y E A R S , OCCUPATION: NIL R/O VILLAGE
Signature Not Verified
Signed by: KRISHNA SINGH
Signing time: 13-03-2024
21:40:35
                                                       2
                                 KUSHMA, TEHSIL- MAHARAJPUR, DISTRICT -
                                 CHHATARPUR, MADHYA PRADESH.

                           5.    SMT. BINNU ALIAS SADHNA D/O DARYAV
                                 BRAMHIN (TIWARI) W/O SHRI SHAMBHU
                                 BRAMHIN, AGED ABOUT 47 YEARS, OCCUPATION:
                                 NIL R/O KATRA MOHALLA, TEHSIL AND
                                 DISTRICT PANNA, MADHYA PRADESH.

                           6.    STATE OF M.P. THROUGH COLLECTOR, DISTRICT
                                 - CHHATARPUR, MADHYA PRADESH.

                                                                                        .....RESPONDENTS
                           (BY SHRI RAM GOPAL PATEL - PANEL LAWYER FOR THE
                           RESPONDENT/STATE )

                                 This appeal coming on for admission, this day, th e court passed the
                           following:
                                                                ORDER

This Second Appeal is preferred under Section 100 of the C.P.C. has been preferred feeling aggrieved by the judgment and decree dated 23.12.2021 in RCA 9-A/2018 by Principal District Judge, Chhattarpur arising out of judgment and decree dated 01.05.2018 in Civil Suit No.18A/2017 by First Civil Judge, Class I, Rajnagar, District Chhattarpur, Madhya Pradesh.

2. Controversy in this matter may be summarized as that respondent No.1 Smt. Maya filed a Civil Suit claiming her share in disputed property situated at Village Vikrampur, Tahsil Rajnagar, District Chhattarpur, Village Jamunya.

3. Respondent No.1/Plaintiff claimed her 1/3rd share in the property situated at Village Jamunya described in para No.1 and 2 of the Plaint and 1/6th share in property described in para 3 of the plaint.

4. The basis of plaintiff's claim was that disputed properties belonging to Daryav Tiwari and Daryav Tiwari had three sons Shri Babulal Tiwari and Mohan lal Tiwari Defendant No.1 and Brijkishor defendant No.2 and 3

daughters Smt. Sumitra, defendant No.5, Smt. Raja Bai, defendant No.6 and Smt. Binnu @ Sadhna defendnt No.7.

5. Respondent No.1/Plaintiff Smt. Maya is daughter of Shri Babulal Tiwari who died in 1982 prior to the death of Daryav Tiwari in 1987 and the mother of wife of Shri Babulal Tiwari also expired in 1990. These facts are not disputed.

6. It is also not disputed that the disputed property belongs to Daryav Tiwari.

7. Plaintiff/Respondent No.1 based her claim asserting that the property belongs to properties which are co-parcener property and she is the co- parcener and she is entitled to claim partition by metes and bounds and for separate position.

8. Trial Court framed the issues. Defendant No.1 to 2/appellants opposed the prayer on the ground that Plaintiff/Respondent No.1 is not the co-parcener as on the death of Daryav Tiwari, the Hindu Succession (Amendment) Act 2005 was not in force. Accordingly, Plaintiff/Respondent No.1 cannot be benefited with the aid of amended Section 6 which came into force on 9th September, 2005.

9. The trial Court framed the issues and recorded the evidence and after appreciating the evidence, trial Court decreed the suit of Plaintiff/Respondent

No.1 deciding her 1/3rd share in teh property of 1/6th share in property described in para 1 and 2 and 1/12th share in the property described in para 3 of the plaint and passed decree for partition by metes and bound and referred to the rest proceedings to the Collector under Section 54 of the C.P.C.

10. In appeal, the First Appellate Court modified the decree to the extent that share in property described in para 1 and 2 of the plaint is 1/6th and also in

the properties described in para 3 of the plaint was 1/6th share and affirmed the rest of the decree passed by the trial Court.

11. Feeling dis-satisfied with both the Courts, this second appeal is preferred proposing the following substantial questions of law:-

"(a) Whether the learned Court below gravely and substantially erred in decreeing the plaintiff's suit for declaration partition and separate possession despite of non-joinder to the daughters namely Sumitra, Raja Bai and Binnu @ Sadhna of Daryav?

(b) Whether the finding of the learned trial Court drawn in para 12 and 19 in the impugned Judgment dated 01.05.2018 that the plaintiff is the daughter of Late Babulal Tiwari is perverse being contrary to the Court testimony of the Defendant No.1 Mohan Lal (D.W.01) and his witnesses Ram Sahaya Choubey (DW-02), Motilal Tiwari (D.W.03) and Sheetal Prasad Tiwari (D.W.04)?

(c) Whether the learned trial Court gravely erred in decreeing the plaintiff's suit and also in granting the decree of declaration, partition and separate possession when in the title clause only the relief of declaration of title and permanent injunction was claimed and no Court fee of full market value of the disputed land has not been paid nor suit was valued as per requirement of Section 7 (vi-a) (b) of the Court Fees Act, 1870?

(d) Whether in view of the facts and in the circumstances

of the case, the learned trial Court was legally justified in presuming the plaintiff's possession on the disputed agricultural land having ignored the evidence led by the defendants?

(e) Whether the learned lower appellate Court erred substantially and gravely in rejecting the appellant's application filed under Order 6 Rule 17 of C.P.C.?

(f) Whether the learned lower appellate Court erred substantially and gravely in following the judgment and decree dated 01.05.2018 passed by the learned trial Court without applying its powers and jurisdiction as per judgment rendered by the Hon'ble Supreme Court in the case of Madhusudandas Vs. Narayanibai and others reported in 1983 M.P.L.J.312?

(g) Whether the learned Courts below were legally justified in determining the share of the plaintiff/respondent Smt. Maya holding her co-parcener with the defendants/appellants in the disputed property?"

12. The proposed substantial question of law (b) is against the pleadings as in para 5 of the written statement, they themselves have shown the plaintiff as daughter of Babulal.

13. The first appellate Court has assigned cogent reasons without disallowing the application under Order 6 Rule 17 of the C.P.C. in para 12 of the judgment.

14. The Apex Court in Vineeta Sharma Vs. Rakesh Sharma and Others (2020) 9 SCC 1 has resolved the controversy regarding the

conferment of status of co-parcener on the daughter born before the amendment in Section 6 the Hindu Succession Act, 1956 vide Hindu Successsion (Amendment) Act, 2005. The relevant para 129 of the judgment is being reproduced as below:-

"129. Resultantly, we answer the reference as under:

(i) 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.

(ii) 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.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by 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 Act of 1956 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.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, 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 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."

15. In this case, plaintiff/respondent No.1 is the daughter of the pre- deceased son of Daryav Tiwari who died in 1987. Accordingly in the light of Vineeta Sharma Vs. Rakesh Sharma (supra), plaintiff/respondent gets the status of co-parcener in the joint Hindu family and she also gets share in the co- parcenery property. No illegality has been caused holding the plaintiff/respondent No.1 as co-parcener or determining her share.

16. Thus, no substantial questions of law arise in this appeal. Hence, this

appeal is dismissed.

(GAJENDRA SINGH) JUDGE veni