Madhya Pradesh High Court
Smt.Rajubai Deced Through Lrs Sharda ... vs Dayal Decd. Through Lrs Antar Singh on 15 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:9866
1 SA-105-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 105 of 2005
SMT.RAJUBAI DECED THROUGH LRS SHARDA RATHOUR W/O
RATANSINGH AND OTHERS
Versus
DAYAL DECD. THROUGH LRS ANTAR SINGH AND OTHERS
Appearance:
Shri Ashok Kumar Surajmal Garg - Senior Advocate along with Shri
Jitendra Shukla - Advocate for the appellants.
None for the respondents though served and represented.
JUDGMENT
(Reserved on 24-02-2025)
(Delivered on 15.04.2025)
This appeal under Section 100 of the CPC has been preferred by
plaintiffs being aggrieved by the judgment and decree dated 17.10.2004
passed in Civil Appeal No.2-A/2002 by the First Additional District Judge,
Dewas partly reversing the judgment and decree dated 09.12.2000 passed in
Civil Suit No.20-A/1998 by the First Civil Judge, Class-I, District Dewas.
2. As per the plaintiffs, Kunwarji and Radhakrishan were the holders
of certain agricultural lands at Gram Sindhani. Kunwarji had died prior to
1955 upon whose death his share in the lands had devolved upon his two
sons Jairam and Daila. Daila is defendant No.1. Jairam had expired in the
year 1979 and plaintiffs are his heirs. Defendants 2 to 7 are heirs of
Radhakrishan. Various sales have been effected with respect to the lands
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from time to time after which 18.999 hectare of lands remain in which heirs
of Kunwarji have 85/100th share whereas heirs of Radhakrishan have
15/100th share. The dispute in the suit is only in respect of 85/100th share of
Kunwarji in the total lands; which are the suit lands. After death of Jairam,
defendants 1 and 2 instituted proceedings before the Tehsil Court but on
account of arising of title dispute they have instituted the present suit for
declaration of their half share in the suit lands, for partition and delivery of
separate possession of the same to them and mesne profits.
3. The defendants 1 and 2 contested the claim by filing their written
statement submitting that Jairam was not son of Kunwarji. Upon death of
Jairam defendants had turned the plaintiffs out of the house and from the suit
lands and have been in exclusive possession of the same ever since then and
have acquired title thereto by virtue of adverse possession, hence plaintiffs
do not have any share in the suit lands.
4. The Trial Court held that defendants have not proved that Jairam
was not son of Kunwarji. Upon death of Kunwarji the suit lands were
inherited equally by Jairam and Daila and after death of Jairam, plaintiffs
have half share therein. Acquisition of title by virtue of adverse possession
has not been proved by defendants. In consequence plaintiff's claim was
decreed.
5. In appeal by defendant No.1, the Lower Appellate Court affirmed
the finding that defendants have not proved that Jairam was not son of
Kunwarji. It further held that upon death of Kunwarji, Jairam and defendant
No.1 were having equal shares in his lands. It also held that defendant No.1
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has not proved acquisition of title to the suit lands by virtue of adverse
possession. However, it further held that Daila and Jairam had four sisters
also hence as per the provisions of Hindu Succession Act, 1956 and M.P.
Land Revenue Code, 1959 all of them would be having a share in the suit
lands in view of which the share of plaintiffs would be 1/6th. In consequence
the judgment and decree passed by the Trial Court has been partly set aside
and it has been held that plaintiffs have 1/6th share in the suit lands.
6. By order dated 02.03.2005 this appeal was admitted on the
following substantial question of law:
"A) Whether the lower appellate Court was justified in holding
that the appellants had only 1/6th share and not half share in the
ancestral property of Kunwarji ?"
7. Learned senior counsel for the appellants has submitted that
Kunwarji had died around the year 1955. The Hindu Succession Act, 1956
had not come into force at the time of his death hence as per Section 82 of
Madhya Bharat Land Revenue and Tenancy Act, Samvat, 2007 the share of
Kunwarji in the suit lands devolved solely upon his sons to the exclusion of
their sisters. The same would not in any manner be affected either by
coming into force of Hindu Succession Act, 1956 or M.P. Land Revenue
Code, 1959. This aspect of the matter has been wholly omitted to be
considered by the lower appellate Court which has vitiated its decree.
8. None has appeared on behalf of the respondents No.1 to 11 to
contest the appeal.
9. I have considered the submissions of the learned counsel for the
appellants and have perused the record.
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10. Kunwarji had died around the year 1955. Though it is the
contention of plaintiffs that he had expired prior to 1955 but the fact remains
that he had expired prior to coming into force of the Hindu Succession Act,
1956. From the entire evidence available on record the fact of Kunwarji
having expired prior to the year 1956 is well established.
11. At the time of death of Kunwarji, Madhya Bharat Land
Revenue and Tenancy Act, Samvat, 2007 i.e. 1950 A.D. was in force. As per
Section 82 thereof the interest of a Pakka tenant devolved in accordance with
the order of succession given therein meaning thereby that an heir included
in Class I inherited the holding first to the exclusion of an heir mentioned in
Class II. In Class I heirs son is included whereas daughters are mentioned in
Class II and III. For ready reference, Section 82 is as under:
"82. Devolution of rights on the death of a male Pakka tenant.- When a male Pakka
tenant dies, his interest in his holding shall devolve in accordance with the order of
succession given below--
Class I-Son, grandson (son's son), great grandson (son's son's son), widow,
predeceased son's widow, predeceased grandson's widow and predeceased great
grandson's widow.
Explanation I-A grandson whose father is dead and great grandson whose father
and grandfather are both dead shall inherit equally with the son.
Explanation II-The widow of the deceased or if there are more widows than one, all
his widows together shall take the same share as that of a son. The widow of a
predeceased son shall inherit in like manner as a son if there is no son surviving of
such predeceased son, and in like manner as a son's son, if there is surviving a son
or son's son of such predeceased son. The same rule shall apply mutatis mutandis to
the widow of a predeceased son of a predeceased son.
Class II-Unmarried daughter.
Class Ill-Married daughter.
Class IV-Father.
Class V- Mother (if she is a widow).
Class VI-Step-mother (if she is a widow).
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Class VII-Brother of the whole blood.
Class VIII-Brother of the half-blood (being a son of the same father).
Class IX-Daughter's son.
Class X-Brother's son.
Class XI-Brother's son's son.
Class XII-Father's father.
Class XIII-Father's mother (if she is a widow).
Class XIV-Sister.
Class XV-Sister's son.
Class XVI-Paternal uncle (father's brother).
Class XVII-Paternal uncle's son (father's brother's son).
Class XVIII-Paternal uncle's son's son.
Class XIX-Father's father's son.
Class XX-Father's father's mother (if she is a widow).
Class XXI-Father's paternal uncle.
Class XXII-Father's paternal uncle's son.
Class XXIII-Father's paternal uncle's son's son.
Explanation-If there are more heirs than one of the same class other than Class I
[who shall inherit per stirpes], all shall share equally."
12. At the time of death of Kunwarji he had two sons Jairam and
Dayila surviving along with four daughters. His interest in the suit lands
hence by virtue of provisions of Section 82 as aforesaid devolved only upon
his two sons Jairam and Dayila and not upon his daughters. The same would
not be affected in any manner by the Hindu Succession Act, 1956 because
succession opened prior to coming into force of the same. Upon coming into
force of M.P. Land Revenue Code, 1959, the interest of Jairam and Daila in
the suit lands ripened into Bhumiswami rights by virtue of Section 158(1)(b)
thereof, hence they were owners of half share each in the suit lands. Upon
death of Jairam his half share devolved upon plaintiffs who hence are owners
thereof as had rightly been held by the Trial Court. The lower appellate
Court has held them to be having only 1/6th share in the suit lands by wholly
omitting to consider the provisions of the Act, Samvat, 2007 hence its
judgment cannot be sustained.
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13. In view of the discussion aforesaid, the substantial question of
law as framed is answered in the negative and in favour of plaintiffs.
Consequently, the judgment and decree passed by the lower appellate Court
is set aside and the judgment and decree passed by the Trial Court is
restored.
14. The appeal is accordingly allowed, however, with no order as to
cost.
(PRANAY VERMA)
JUDGE
jyoti
