Madhya Pradesh High Court
Banti vs Maniram on 28 March, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 28th OF MARCH, 2025
SECOND APPEAL No. 1412 of 2022
BANTI AND OTHERS
Versus
MANIRAM AND OTHERS
Appearance:
Shri Anuj Bhargava - Advocate for the appellants.
Shri Raghav Shrivastava - Government Advocate for the respondent 2
/ State.
ORDER
This second appeal has been preferred by the appellants/plaintiffs
challenging the judgment and decree dated 1/2/2018 passed by 14th
Additional District Judge, Indore in Regular Civil Appeal No.40/2017
affirming the judgment and decree dated 21/12/2016 passed by First Civil
Judge, Class-II, Depalpur, District Indore in Civil Suit No.3-A/2012,
whereby Courts below have concurrently dismissed the suit for declaration
of 1/3-1/3 share of the plaintiffs, partition and permanent injunction in
respect of agricultural land survey Nos.33/1/2 and 33/2/1 total area 0.932
hectare situated in village Rawad, Tehsil Depalpur, District Indore.
2. Learned counsel for the appellants/plaintiffs submits that in fact the
land in question belonged to father of defendant 1-Maniram, namely,
Roopchandji, as such, it is ancestral property of the parties in the hands of
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defendant 1. He submits that after service of summons, although defendant 1
had appeared but did not file written statement and was proceeded ex
parte and thereafter, Trial Court recorded ex parte evidence of the plaintiffs
and even without there being any rebuttal to the evidence adduced by the
plaintiffs, dismissed the suit. He submits that as in the Trial Court no
document was filed showing that the land in question belongs to defendant
1's father Roopchandji, therefore, an application under Order XLI Rule 27 of
C.P.C. was filed by the plaintiffs showing that the land belongs to defendant
1's father Roopchandji and thus, it is ancestral property of the parties in the
hands of defendant 1, but First Appellate Court has dismissed the application
on the ground of delay without considering relevancy of the documents
despite the fact that there was no opposition to the application and
documents filed under Order XLI Rule 27 of C.P.C. Learned counsel for the
appellants submits that as the suit property is ancestral property of the
parties, therefore the plaintiffs are having right by birth and are entitled for
1/3rd share each as well as partition. In support of his submissions, he placed
reliance on the decisions in the cases of Union of India Vs. K.V. Lakshman
and others, (2016) 13 SCC 124 , North Eastern Railway Administration,
Gorakhpur Vs. Bhagwan Das (Dead) by LRS., (2008) 8 SCC 511 , State of
Rajasthan Vs. T.N. Sahani and others, (2001) 10 SCC 619 , Shyam Narayan
Prasad Vs. Krishna Prasad and others, (2018) 7 SCC 646 , Rohit Chauhan Vs.
Surinder Singh and others, (2013) 9 SCC 419 , K.C. Laxmana Vs. K.C.
Chandrappa Gowda and another, (2022) 18 SCC 483 and Kehar Singh
(Dead) Through Legal Representatives and others Vs. Nachittar Kaur and
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others, (2018) 14 SCC 445 and prays for admission of the second appeal.
3. Heard learned counsel for the appellants/plaintiffs and perused the
record.
4. As has been mentioned in paragraph 1 of the plaint, defendant 1-
Maniram had received the suit land in partition and as such, it is claimed that
it is ancestral property of the plaintiffs. Although, before Trial Court no
document was filed showing it to be belonging to defendant 1's father
Roopchandji, but before First Appellate Court by way of application under
Order XLI Rule 27 of C.P.C. the plaintiffs produced documents showing that
suit land belongs to defendant 1's father Roopchandji.
5. For the sake of argument, even if the contentions made on behalf of
the plaintiffs are taken to be true, then also the plaintiffs, who on the date of
filing of the suit, i.e.1/2/2012, were of the age of 19 years and 16 years
respectively, had no right in the suit property in the lifetime of their father
Maniram, because they were born after coming into force of the Hindu
Succession Act, 1956.
6. In the case of Chandrakanta and another Vs. Ashok Kumar and
others, 2002 (3) M.P.L.J. 576 , in which this Court has also relied upon the
decisions of Hon'ble Supreme Court in the cases of Commissioner of
Wealth-tax, Kanpur etc. vs. Chander Sen etc., AIR 1986 SC 1753 and
Yudhishter vs. Ashok Kumar, AIR 1987 SC 558 , it has been clearly held that
after coming into force of the Hindu Succession Act, 1956, the theory of
right by birth has gone.
7. In the present case, as the plaintiffs did not even born when the
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defendant 1 received the property from his father as full owner, therefore, it
cannot be said that the plaintiffs are having right in the suit property in the
lifetime of their father, i.e. defendant 1 and Courts below have committed
any mistake in dismissing the suit.
8. In view of the aforesaid factual scenario, the decisions in the cases
of K.V. Lakshman (supra), Bhagwan Das (Dead) by LRS. (supra), T.N.
Sahani (supra), Shyam Narayan Prasad (supra), Rohit Chauhan (supra), K.C.
L a x m a n a (supra) and Kehar Singh (Dead) Through Legal
Representatives (supra) relied upon by learned counsel for the
appellants/plaintiffs do not provide any help to the appellants/plaintiffs.
9. Resultantly, in absence of any substantial question of law, the
second appeal fails and is hereby dismissed.
10. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
Arun*
