[Cites 11, Cited by 0]
Madhya Pradesh High Court
Gajanand vs Rajabhau on 15 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:1267
1 FA-166-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
FIRST APPEAL No. 166 of 2004
GAJANAND
Versus
RAJABHAU
Appearance:
Shri Amit Agrawal, learned Senior Counsel assisted by Shri Arjun
Agrawal, learned counsel for the appellant.
Shri Dattatray Kale, learned counsel for the respondent [R-1][LR/S].
HEARD ON : 31.10.2025
PRONOUNCED ON : 15.01.2026
.......................................................................................................................................................
JUDGMENT
The appellant has filed the present appeal under Section 96 r/w Order
XLI Rule 1 of the Code of Civil Procedure, 1908 being aggrieved by the
judgment and decree dated 30.01.2004 passed by the IInd Additional District
Judge, District - Ujjain whereby Civil Suit No.10-A/2003 has been
dismissed.
02. Facts of the case in short are as under:-
2.1. The appellant / plaintiff filed a suit i.e. Civil Suit No.10-A/2003
(old number 47-A/2002) seeking declaration, partition, separate possession
and permanent injunction in respect of House No.170, Kot Mohalla, Mahakal
Chouraha, Ujjain against the defendants on 28.02.1999.
2.2. In the said suit, the appellant stated that the original owner of the
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said house was Laxman Rao, son of Vishwanath Telang and his name was
recorded in the municipal records. The said Laxman Rao Telang passed away
around the year 1961. The late Laxman Rao had two children namely late
Annapurna Bai alias Bapu Tai and defendant No.1 - Rajabhau Telang. Late
Annapurna Bai passed away a few years before the death of Laxman Rao
Telang. Late Annapurna Bai had two sons namely Gajanan Telang and
Chintaman Telang and a daughter namely Smt. Suman Dharmadhikari.
Chintaman Telang died in the year 1981 and his legal heirs are respondents
No.3 to 5. When Laxman Rao died in 1961, his legal heirs according to
Section 8 of the Hindu Succession Act, 1966, were the appellant,
respondents No.1 & 2 and Chintaman Telang, the father of respondents No.3
to 5. After the death of Chintaman Telang in the year 1981, respondents No.3
to 6 became his legal heirs. Thus, the disputed building mentioned in the
plaint is the joint property and under the joint ownership and possession of
the plaintiff and defendants No.1 to 5. Defendant No.1 - Ranabhai holds 1/2
share, while the plaintiff and defendants No.2 to 5 together hold the
remaining 1/2 share. Specifically, the plaintiff and defendant No.2 each hold
1/6 share and defendants No.3 to 5 each hold 1/18 share.
2.3. On 21.09.1999, the plaintiff came to know that defendant No.1
was planning to demolish the house in question and transfer it to another
person. The plaintiff and his son confronted with defendant No.1 with
respect to the aforesaid fact and told that the property is jointly owned and
undivided and you are having no right to demolish or transfer it. Defendant
No.1 behaved with the plaintiff in insolent manner and refused to give him
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3 FA-166-2004
any share, which gave cause of action to the plaintiff to institute the civil
suit.
2.4. On 07.04.2002, defendant No.1 filed written statement denying
the averments made in the plaint and it was stated that Laxman Raoji died in
the year 1960 and the property in question was his self acquired property. His
daughter Babu Tai died in the year 1943, therefore, the plaintiff, defendant
No.2 and Chintaman Telang cannot be said to be legal heirs of Laxman Raoji
as per Section 8 of the Hindu Succession Act, 1956. It was further stated that
the plaintiff and defendants No.2 to 5 do not have any right, title or interest
with respect to the disputed property. He is the only legal heir of late
Laxman Raoji and is the owner of the property in question, hence, the suit be
dismissed.
2.5. Defendant No.6 also filed a written statement stating that he is a
tenant in one part of the house in question and supported the averment made
by defendant No.1.
2.6. The learned trial Court framed six issues for adjudication and
after appreciating the evidence that came on record, vide judgment dated
30.01.2024, the suit has been dismissed. Hence, the present first appeal is
before this Court.
03. Learned Senior Counsel appearing for the appellant submits that
the learned trial Court has passed the judgment and decree without framing
the correct issues which is illegal and liable to be set aside. The learned trial
Court has erred in deciding issues No.1 & 3 against the plaintiff and in
favour of defendant No.1. While deciding the aforesaid issues, the learned
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4 FA-166-2004
trial Court has considered the pleadings of the parties and documentary
evidence as well as oral evidence. The provisions of Sections 8 & 23 of the
Hindu Succession Act and Article 66 of the Limitation Act. It is further
submitted that the finding arrived at by the learned trial Court is contrary to
the pleadings and aforesaid provisions of law.
04. Learned Senior Counsel further submits that evidence adduced in
the case establishes that Laxman Raoji died in the year 1960 / 1961 and the
Hindu Succession Act came into force w.e.f. 17.06.1956 and Bapu Tai died
much before 1956. At the time of death of Laxman Raoji, as per Section 8 of
the Hindu Succession Act the son of Bapu Tai became the legal heir of
Laxman Raoji. Hence, the learned trial Court has erred in holding that the
plaintiff is not the legal heir of late Laxman Raoji and the interpretation of
''predeceased daughter'' is also incorrect. It is further submitted that the trial
Court has erred in holding that the plaintiff suit was barred by limitation
under Article 65 of the Limitation Act. It is also submitted that the defendant
No.1 did not raise any objection or plea of adverse possession in his written
statement nor pleaded that he had continuously been using the property in
question. In absence of such plea, the learned trial Court has committed
grave error of law in holding that defendant No.1 dispossessed the plaintiff
and the plaintiff suit is barred by limitation. Order VIII Rule 3 CPC provides
that unless such a specific objection is raised by the defendant in the written
statement and made a subject matter of the suit, the learned trial Court did
not have the jurisdiction to give such finding. However, the learned trial
Court has failed to consider the said provision of law.
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05. It has further been contended that the learned trial Court has
erred in holding that under Section 23 of the Hindu Succession Act, the
plaintiff is not entitled to share in the house in question. The plaintiff is the
legal heir of late Laxman Raoji as per Section 8 of the Hindu Succession
Act, hence, he is entitled to claim partition. While deciding issues No.1 & 3,
the learned trial Court has not considered the provisions of Hindu Women
Right to Property Act, 1937 according to which girls / women are also
having right in the property. On such premises, it has been prayed that the
present appeal be allowed and judgment and decree passed by the trial Court
be set aside.
06. Learned counsel appearing for the respondents has argued in
support of the impugned judgment and decree and a prayer has been made
the present appeal be dismissed.
07. I have heard learned counsel for the parties at length and perused
the record.
08. As per the averment made in the plaint, it is admitted that the
house in question belongs to Laxman Raoji. The appellant / plaintiff is the
son of late Annapurna Bai alias Bapu Tai, who was the daughter of late
Laxman Raoji. Laxman Raoji died in the year 1961 as per the averment
made in the plaint. Hence, right of succession for daughter was not opened
before 09.09.2005 as the right of succession for daughter came into force by
way of insertion of Section 6(3)(b) of the Hindu Succession Act in the year
2005. For ready reference, Section 6(3)(b) is reproduced below:-
''6. Devolution of interest in coparcenary property. --
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6 FA-166-2004
(1) ******
(2) ******
(3) Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the property of
a Joint Hindu family governed by the Mitakshara law, shall
devolve by testamentary or intestate succession, as the case may
be, under this Act and not by survivorship, and the coparcenary
property shall be deemed to have been divided as if a partition had
taken place and,--
(a) ******
(b) the share of the pre-deceased son or a pre-deceased daughter,
as they would have got had they been alive at the time of partition,
shall be allotted to the surviving child of such pre-deceased son or
of such pre-deceased daughter.''
09. The aforesaid provisions of law granted equal coparcenary rights
to daughters, came into force 09.09.2005. Section 6(3) deals with the
devolution of interest in a Mitakshara coparcenary property when a Hindu
dies after the 2005 amendment. Sub-clause (b) specifies how the share of a
pre-deceased son or daughter is allotted to their surviving child. This entire
framework applies only to deaths occurring after the 2005 amendment took
effect. The Supreme Court has clarified that the amendment is largely
prospective in nature, with the condition that both the daughter and the
coparcener father must be alive as of 09.09.2005 to benefit from the new
coparcenary provisions under Section 6(1).
10. In paragraph - 10 of the impugned judgment passed by the trial
Court, it has been held that the death of Annapurna Bai alias Bapu Tai took
place much prior to implementation of Hindu Succession Act in the year
1956 as she died on 1953 - 54, although as per statement of defendants'
witness Rajabhau, her death took place in the year 1943. In paragraph - 15 of
the impugned judgment, the learned trial Court has held that Section 8 of the
NEUTRAL CITATION NO. 2026:MPHC-IND:1267
7 FA-166-2004
Hindu Succession Act must be applied to the situation existing after the
enactment of the Hindu Succession Act, 1956. Further status must be
determined based upon the status of the parties on or after the date of
implementation of the Hindu Succession Act. Even if it is assumed that death
of Annapurna Bai alias Bapu Tai took place in the year 1953 - 54, Section 8
of the Hindu Succession Act will not apply as the same has not been given
effect retrospectively. Hence, Section 8 of the Hindu Succession Act will not
be applicable in case of the plaintiff as the same came into effect from 1956.
The Hindu Women's Right to Property Act, 1937 is also not applicable in the
present case because no Hindu widow received any limited right to property
in this case.
11. Having perusal of the impugned judgment and decree, I am of
considered view that no patent illegality has been committed by the trial
Court and the finding of fact arrived at the by the trial Court is just and
proper and does not warrant any interference by this Court. Hence, the
judgment and decree passed by the trial Court is hereby upheld.
12. In view of the above, First Appeal stands dismissed.
(ALOK AWASTHI)
JUDGE
Ravi
