Chattisgarh High Court
Suresh Agrawal vs Ramesh Kumar Agrawal And Others on 12 April, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 89 of 2012
Suresh Agrawal S/o Late Chhedi Lal Agrawal, aged about 45 years, R/o
Bhagat Singh Ward, Bhatapara, Dist. Baloda Bazar, Bhatapara(CG)
---- Appellant
Versus
1.Ramesh Kumar Agrawal(Goel), aged about 39 years, S/o Chhedi Lal
Agrawal, R/o Bhatapara, Tahsil Bhatapara, District Raipur(CG)
2.Madan Agrawal S/o Late Chhedi Lal Agrawal, aged about 54 years, R/o
Shankar Ward, Bhatapara, District-Raipur(CG)
3.Naresh Kumar Agrawal S/o Chhedi Lal, aged about 42 years, R/o
Parshuram Ward, Bhatapara, District- Raipur(CG)
Respondents No.1 to 3 at present District Baloda Bazar-Bhatapara(CG)
4.Smt. Nutan Bansal W/o Lallu Ram Agrawal, aged about 40 years, R/o Agey Nagar, Bilaspur(CG)
5.Smt. Sulochana Agrawal W/o Kiran Lal Agrawal, aged about 47 years, R/o Village Dadhi, District Durg(CG)
---- Respondents ____________________________________________________________ For Appellant : Shri A. P. Sharma, Advocate.
For Respondent No. 1 : Shri Anand Kumar Gupta, Advocate. ____________________________________________________________ Hon'ble Shri Justice Narendra Kumar Vyas JUDGMENT ON BOARD 12.04.2022
1)This First Appeal has been filed under Section 96 of the Code of Civil Procedure by defendant No.2 against the judgment and decree dated 26.03.2012 passed by learned Additional District Judge, Bhatapara, District- Baloda-Bazar- Bhatapara in Civil Suit No. 08-A/2009, whereby learned trial Court has partly allowed the suit filed by plaintiff.
2) For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No.08-A/2009 which was filed for partition and separate possession of the suit property.
3)The brief fact as reflected from the record is that the plaintiff has filed civil suit before the learned Additional District Judge, Bhatapara for partition and separate possession of the suit property as described in paragraph 2 of the plaint. It has been contended that plaintiff and defendants' father Late Chhedi Lal Agrawal has purchased the suit property through registered sale-deed on 23.04.1987 in the name of Madan Lal, Chhedi Lal & Naresh Kumar. Their father has also purchased property on 23.04.1987 in the 2 name of Suresh Chandra (plaintiff) and Ramesh Chandra (defendant No.
1). It has been further contended that the plaintiff and defendants No. 1 to 3 are brothers and respondents No. 4 & 5 are sisters, they are governed as per Mitakashara Branch of Hindu Law. It has been further contended that plaintiff was residing in one part of the house along with his family, defendant No.2 started creating dispute with intention of eviction, which has compelled him to live in a rented house and kept his goods in one of the rooms. The plaintiff has issued notice on 19.06.2009 to defendants through his counsel for partition, but they have not taken any step which has necessitated him to file suit. On this factual matrix, plaintiff has prayed for relief of partition to the tune of 1064 Sq. Ft. of the suit property and it is also prayed that the possession may kindly be granted on his share from the defendants.
4)The defendants No.1 and 2 have filed joint written statement denying the allegation made in the averments mainly contending that it is not ancestral property of their father, but it is self-acquired property of their father and it has been specifically contended that after death of their father there was partition between plaintiff and defendant. The defendant has given Rs.2,50,000/- to the plaintiff in pursuance of that money though he is living separately and doing his business. It has also been contended that father has partitioned the property during his lifetime, defendants No.4 and 5 who are sisters after marriage living with their family peacefully, as such, there is no requirement of partition of the suit property, prayed for dismissal of the suit.
5)On the pleading of the parties, learned trial Court framed two issues. Issue No.1 is whether the plaintiff Ramesh Kumar Agrawal is entitled to get partition of suit property measuring about 4564 Sq.Ft. The plaintiff to substantiate his stand has examined himself as PW-1 and the defendant has examined Suresh Agrawal as DW-1. The plaintiff was examined before the learned trial Court wherein he has reiterated the same averments which have already been made in the plaint. The defendants have cross- examined the plaintiff by putting a specific question about payment of Rs.2,50,000/- by the defendants, which was denied by the plaintiff. He has also denied that the amount was given in the bank account maintained by the plaintiff. The defendant has examined himself and cross-examined wherein he has stated that he has not filed documentary evidence to demonstrate that he has given Rs. 2,50,000/- to the plaintiff.
6)Learned trial Court after appreciating the evidence and material on record 3 has allowed the suit and granted decree for partition of the suit property as detailed in the decree and has granted decree holding that the plaintiff is entitled to get 1/6th share of the property including 1/6 share of the house and 1/6th share of the nazul land, for that he may proceed before the Collector, Raipur for partition. This order is being challenged by the appellant before this Court by filing an appeal under Section 96 of the CPC.
7)Learned counsel for the appellant would submit that the plaintiff has undervalued the suit and for that according to him the suit property valued at Rs.36 lacs, therefore, stamp duty has not been paid properly, as such, the suit is undervalued and on this count alone the suit deserves to be dismissed. Learned counsel for the appellant would further submit that defendants have filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint or direction may be issued to plaintiff to pay proper Court fees. Learned trial Court while rejecting the said application under Order 7 Rule 11 of the CPC vide its order dated 12.05.2010 has recorded a finding that the defendants have not adduced preliminary evidence on this issue. This issue can be examined after recording of the evidence. This order was never assailed by the defendant/appellant by filing a civil revision, he has assailed the order in this appeal and would submit that the learned trial Court has committed irregularity in rejecting the application, as the suit is undervalued, on this count alone, the case is required to be remand back to the trial Court for further adjudication on the point of court fee.
8)On the other hand, learned counsel for the defendant would submit that the decree passed by the learned trial Court is legal, justified and does not call for any interference.
9)I have heard learned counsel for the parties and perused the record.
10)Learned counsel for the defendant would submit that learned trial Court has not given any finding with regard to Court fees and no issue with regard to valuation has been framed. It is pertinent to mention here that neither any application for framing of issue with regard to court fee has been submitted nor non-framing of issue has been ever challenged before any forum, therefore, there was no occasion for the trial Court to determine the issue of court fee. Even otherwise, from perusal of relief clause, it is quite vivid that the plaintiff has filed suit for partition and possession of the suit property for which he has valued the suit property, which is in accordance with the Court Fee Act. As Section 7(v & vi-a) of the Court Fee Act provides for possession of lands, houses, gardens & partition, which is extracted 4 below:-
"7.(v)For possession of lands, houses and gardens--In suits for possession of lands, houses and gardens, according to the value of the subject matter; and such value shall be deemed to be- where subject matter is land, and-
(a) Such land is assessed to land revenue or land revenue is payable in respect of such land- twenty times the land revenue so assessed or so payable;
(b) Such land forms a part of land which is assessed to land revenue or in respect of which land revenue is payable- twenty times of the land revenue- proportionately worked out for such part of land;
(c) such land is not assessed to land revenue- twenty times of the land revenue worked out at the rate of five rupees per acre;
7.(vi-a) In suits for partition.-
(a) according to one-half of the value of the plaintiff's share of the property;and
(b) according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner on such date is denied."
11)As per the sale deed Ex.P-4 and P-5 the value of the plot comes to Rs.50,000/- and appellant has claimed for partition of 1/6 th part of the suit property, therefore, he has valued Rs.50,000/- and for claiming partition of 1/6th share of the constructed house, he has valued suit Rs.50,000/-. It is pertinent to mention here that the defendant even after rejection of the Order 7 Rule 11 of CPC has not laid any evidence to demonstrate that the property is valued at Rs.36 lacs and as such the suit valued by the plaintiff has to be accepted in absence of any specific challenge to the valuation of the suit or any evidence, material placed on record to prove the valuation of the suit property to the tune of Rs. 36 lacs. Accordingly, the submission made by learned counsel for the defendant that the suit is undervalued, is incorrect and deserves to be rejected by this Court. As such, the contention raised by the learned counsel for the appellant that the suit was undervalued cannot be accepted.
12)Learned trial Court after appreciating the evidence has recorded the finding that the defendants have not filed any document to demonstrate that Rs.2,50,000/- has been paid by them, therefore, this finding cannot be held to be perverse or contrary to the evidence, therefore, this submission made by learned counsel for the appellant that the finding is incorrect, deserves to be answered in negative. Learned trial Court has also appreciated that the evidence and finding with regard to purchase of property through sale deed on 23.04.1987 wherein it has been recorded that the property has been purchased by Chhedi Lal. Learned trial Court after appreciating the 5 evidence and material on evidence has categorically recorded a finding that the father of plaintiff and defendants' has purchased the property. It is pertinent to mention here that the learned trial Court has recorded a finding that the defendants have unable to establish that any partition has been taken place after death of their father.
13) Learned trial Court after appreciating the evidence and also considering the fact of the case that the defendant No.4 and 5 were sisters of the plaintiff and defendants and they are also entitled to get share in the property inherited by their father in view of the amendment in Section 6 of the Hindu Succession Act being coparcener. The daughter's right to property from her father's property, is now well settled by Hon'ble the Supreme Court in Vinita Sharma and others Vs. Rakesh Sharma reported in (2020) 9 SCC 1 wherein it has been held at paragraph 60, 68, 69, 73, 75 & 80 as under:-
"60.The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.
68.Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)
(a) and 6(1) Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been 6 conferred the rights of a coparcener by obstructed heritage.
According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).
69.The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).
73.It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.
75.It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.
80.A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v.
7Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part."
14)From the analysis of the evidence, law on the subject, it is clearly held that finding recorded by the learned trial Court is neither perverse nor contrary to the record or against the provisions of law, which warrants interference by this Court. This Court is of the view that the first appeal deserves to be dismissed by affirming the judgment and decree passed by the learned trial Court.
15)Accordingly, the first appeal deserves to be and is hereby dismissed.
16) No order as to costs.
17)A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge parul