Chattisgarh High Court
Sevak Ram (Dead) Through Lrs vs Dwij Bai And Ors on 14 June, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 170 of 2015
Judgment Reserved on 01.04.2022
Judgment Delivered on 14.06.2022
1. Sevak Ram (since deceased) through legal heirs :-
1a.Smt. Sevati widow of late Sevak Ram, aged about 42 years,
1b.Virendra, son of late Sevak Ram, aged about 24 years,
1c.Gokul Sahu, son of Late Sevak Ram, aged about 20 years.
All are R/o. Village Chaitara, Tahsil Rajim, District Gariyaband
(C.G.) .
1d. Minaksi Bai Sahu, D/o. Late Sevak Ram, wife of Shri Gumar Sahu,
aged about 22 years, R/o. Village Patewa, P.S. Gobara, Nayapara,
Tahsil Nayapara, District Raipur (C.G.) .
2. Kodu Ram, son of Salik Ram Sahu, aged about 47 years,
3. Kodan Ram, son of Salik Ram Sahu, aged about 45 years,
All are R/o. Village Chaitara, P.H. No. 12/09, Tahsil Rajim, District
Raipur (Now Gariyaband) (C.G.).
---- Appellants/Defendants
Versus
1. Dwij Bai, aged about 45 years, D/o Salik Ram Sahu, wife of Devlal
Sahu, at Present R/o Village Chaitara, P.H. No. 12/09, Tahsil Rajim,
District Raipur (Now Gariyaband) (C.G.)
2. Lachhavantin Bai, D/o Salik Ram Sahu, at present R/o. Village
Parteva, Tahsil Rajim, District Raipur (Now Gariyaband) (C.G.)
(Plaintiffs)
3. State of Chhattisgarh, Through : The Collector, District Raipur (Now
Gariyaband) (C.G.) (Defendant No. 5)
---- Respondents
For Appellants : Mr. Raghvendra Pradhan, Advocate. For Respondents No. 1 & 2 : Mr. Vivek Mishra, Advocate & Ms. Ishwari Ghritlahre, Advocate.
For State/Res. No. 3 : Mr. Tarkeshwar Nande, P. L. Page 2 Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This is defendants' Second Appeal filed under Section 100 of CPC against the judgment and decree dated 15.01.2015, passed by Additional District Judge, Gariaband, in Civil Appeal No.21-A/2010 partly allowing the judgment and decree dated 09.01.2009 passed by Second Civil Judge, Class-II, Rajim in Civil Suit No. 57-A/2008, by which, the plaintiff's suit has been decreed.
2. For the sake of convenience, parties would be referred to as per their description shown in the plaint filed before the trial Court.
3. Instant appeal has been admitted by this Court on 10.07.2015 on the following substantial question of law:-
" Whether the findings of the First Appellate Court by holding the share of respondents No. 1 & 2 to the extent of 1/6th & 1/6th of the suit property is perverse ?"
4. The brief facts of the case, as reflected from the record are that, Plaintiffs/respondents No. 1 & 2 have instituted Civil Suit before 2nd Civil Judge, Class-II, Rajim, Raipur for declaration of title, partition and for possession mainly contending that the plaintiffs and defendants are Hindus and they are governed by Hindu Succession Act, 1956 and genealogy of the family was also described in the plaint. It has been contended that plaintiffs and defendants No. 1 to 3 are real sisters and brothers, respectively whereas defendant No. 4 is widow of late Shri Salik Ram Sahu and mother of plaintiffs and defendants No. 1 to 3, who are legal heirs of Late Salik Ram Sahu. Salik Ram Sahu was having agricultural land bearing Khasra No. 14, area 4.22 hectare (in total) situated at village Chaitra, Patwari Circle No. 12, Rajasva Nigam Mandal and Tehsil Rajim, District Raipur as per the details given in paragraph 5 of the plaint. As per the plaintiffs, the aforesaid property was the ancestral land of the defendants and plaintiffs No. 1 & 2 which in subsequent paragraphs will be referred to as suit land. It has been alleged that after the death of Page 3 late Mr. Salik Ram Sahu, the defendants with intention to grab the suit land, to deprive the plaintiffs fraudulently alienated the suit land by partition it amongst themselves and recorded their names in the revenue record, therefore, they have preferred an appeal before the Sub Divisional Officer, Gariaband against the said mutation order which was dismissed as barred by limitation, against which, they preferred an appeal before the Additional Collector, Gariaband, which is pending consideration. On 24.06,2006, when plaintiff No. 1 Dwij Bai was doing agricultural work in her share of the suit land, defendants have committed marpeet with her and, therefore, on the report of plaintiff, offences under Sections 294, 506 & 324/34 have been registered against the defendants in connection with Crime No. 222/2006, which is pending before the Judicial Magistrate, First Class, Gariaband. The plaintiffs have filed an application under Section 145 Cr.P.C. before the Sub Divisional Officer for possession of the said paddy and in that proceedings, SDO, Gariaband has seized the paddy. It has further been contended that since the plaintiffs are daughters of Late Salik Ram Sahu, they are also entitled to get 1/5th share of the suit property, as such filed the suit for declaration, partition and possessions against the appellants/defendant No. 1 to 3 claiming their rights.
5. The appellants/defendants No. 1 to 3 have filed their written statements denying the year of death of their father as year 2002, it has been contended that their father expired on 15.07.1999 and the suit land which has been described in the plaint, is not correct one. In fact, father of plaintiffs and defendants No. 1 to 3 out of the nucleus of the joint family property, have given 1½ acres of the land to Devlal, who is husband of plaintiff No. 1, as such, the aforesaid property also belongs to plaintiffs and defendants No. 1 to 3 and the plaintiffs have deliberately concealed the said property from the list of property in dispute. It has further been contended the plaintiffs' father expired on 15.7.1999 and after the death of their father, Page 4 plaintiffs have waived their right over the suit property and accordingly, defendants name has been recorded in the revenue record, as such, there is no question of depriving of plaintiffs' right over the suit property. Rest of the averments made in the plaint have been denied by the defendants by submitting that after the death of their father i.e. on 15.7.1999, they are in peaceful possession of the suit property, as such, the plaintiffs have filed a suit on a false and frivolous ground for declaration of title, partition and possession against the defendants No. 1 to 3. It has been further contended that out of 4.10 hectare of land, 1.50 acres of land has already been recorded in the name of Devlal, who is husband of plaintiff No. 1, as such, total 11 acres & 75 decimal of land is in existence. It has been further contended that as per Section 6 of the Hindu Succession Act, 1956, everyone is entitled to get 1/30th share in the suit property. Husband of plaintiff No. 1 Devlal has already been given 1½ Acres land which is more than share which plaintiffs are entitled to get. Therefore, plaintiffs have no right to claim partition & possession over the suit land, therefore, they prayed for dismissal of the suit.
6. The trial Court, after hearing counsel for both the parties, has framed as many as five issues.
7. The respondents/plaintiffs to substantiate their case has examined Dwij Bai (PW-1), Udela Ram (PW-2) & Chherka (PW-
3) in support of their case whereas the appellants/defendants No. 1 to 3 to substantiate their case have examined Sevak Ram (DW-1), appellant No. 1 himself, Ramasara (DW-2) and Dular Singh (DW-3) in support of their case.
8. The learned trial Court, after appreciating the oral and documentary evidence available on record, has decreed the suit of the plaintiffs/respondents No. 1 & 2 by its judgment & decree dated 09.01.2009 by recording a finding that plaintiffs' father Salik Ram Sahu has not purchased the property to the tune of Page 5 1.5 acres and has not given the same to plaintiff's No. 1 husband namely Devlal in partition. Learned trial Court while deciding the issue No. 2 that whether the land bearing Khasra No. 310/1, area 0.12 hectare belongs to late Salikram Sahu or it has been purchased by Radhabai, has decided in negative holding that as per provisions contained in Section 54 of the Transfer of Property Act, 1882 (henceforth "Act, 1882"), the property valued at Rs. 100/- has to be purchased through registered sale deed whereas the sale deed, which has been produced by the defendants dated 20.04.2001, is an un-registered sale-deed, as such, it is in violation of the provisions contained in Section 54 of the Act, 1882 and, therefore, it cannot be said that the said property has been purchased by Radha Bai and has recorded a finding that the said property belongs to Late Salik Ram Sahu.
9. Learned trial Court, after appreciating to the oral and documentary evidence available on record, has also recorded a finding that the partition has been done without any information to the plaintiffs and, therefore, they are also entitled to get share in the suit land, as in view of the provision of Hindu Succession Act as amended in the year 2005, plaintiffs being co-parcener are entitled to get partition and held that plaintiffs are entitled to get 1/6th share of entire property of this father Salikram as mentioned in Schedule A there will be an imaginary partition of each 1/5th share between Salikram, his three sons Kodan, Kodu and Sevakram and widow Radhabai. Accordingly, three sons, two daughter and widow of Salikram will be entitled to get 1/30 th share of the suit property.
10. Being aggrieved and dissatisfied with the judgment and decree of the trial Court, the plaintiff preferred first appeal under Section 96 of the CPC before the Additional District Judge, Gariaband (C.G.) stating that judgment & decree passed by the trial Court may be modified to the extent the plaintiffs are entitled to get 1/5th share in the property and decree for partition may also be granted. There was delay in filing the first appeal, as such, the Page 6 plaintiffs preferred an application for condonation of delay in filing the said first appeal.
11.Learned First Appellate Court, vide its judgment & decree dated 15.01.2015, while condoning the delay occurred in filing the first appeal, has allowed the appeal by recording a finding that as per Section 8 of the Hindu Succession Act, 1956 plaintiffs and defendants are class I heirs of the deceased Salik Ram Sah, as such, plaintiffs are entitled for 1/6th and 1/6th share of the suit property; against which, this instant second appeal under Section 100 of the CPC has been preferred, which was admitted for hearing by this Court on the substantial question of law has mentioned in paragraph 3 of this judgment.
12. Learned counsel for the appellants would submit that learned first appellate court has not considered the fact that Salikram expired on 15.07.1999 and at that time the provisions of Hindu Succession Amendment Act 2005 was not made applicable and partition has already been done. This fact is within the knowledge of plaintiff itself. Still the learned first appellate court has applied the provisions of Hindu Succession Amendment Act retrospectively which is erroneous and substantial question of law framed by this Court deserves to be answered in favour of the defendants. He would further submit that the learned trial court has rightly applied the provisions of Hindu Succession Act which was prevailing before application of Amendment Act, 2005.
13. On the other hand, learned counsel for the respondents /plaintiffs would submit that Hindu Succession Amendment Act, 2005 has been made applicable retrospectively by the learned first appellate court is in conformity with the view taken by Hon'ble Supreme Court in the matter of Vineeta Sharma v. Rakesh Sharma1 and would refer to paragraphs No. 51, 60, 67, 68, 69, 74, 83, 107 & 137 of its judgment. He would further submit that in another judgment i.e. Arunachala Gounder v.
1 2020 Vol. 9 SCC 1 Page 7 Ponnusamy2 the same view has been taken and would refer to paragraphs No. 66 & 67 of the judgment. As such, judgment & decree passed by the 1st Appellate Court is legal & justified, He would further submit that respondent No. 5 Radha Bai has expired during pendency of the suit, therefore, partition will be done between existing co-parcener i.e. defendants to 1 to 3 and plaintiffs, therefore, the plaintiffs and defendants No. 1 to 3, each, are entitled to get 1/5th share in the suit property.
14. I have heard learned counsel appearing for the parties and perused the record of both the courts below.
15. Before adverting to the substantial question of law framed by this Court, it is expedient for this Court to extract provisions of section 6 of Hindu Succession Act, 1956 as amended in 2005 which is as under:-
"6 Devolution of interest in coparcenary property (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (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 2 Civil Appeal No. 6659/11, decided on 20.01.2022 Page 8 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) the daughter is allotted the same share as is allotted to a son;
(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; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may be.
Explanation. --For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
16. Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly Page 9 registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]"
17. Since the plaintiffs and defendants No. 1 to 3 are coparcener of the joint Hindu family property, as per Hindu Succession Act as amended in 2005, the daughters are also entitled for getting equal share in the property inherited by their parents. As such, defendants and plaintiff are entitled to get equal share in the property as per Section 6 of the Hindu Succession Act as amended in 2005.
18. The Hon'ble Supreme Court in the case of Vinita Sharma v. Rakesh Sharma and others 2020 (9) SCC 1 has held in paragraphs Nos. 60, 68, 69, 73, 75 and 80 which reads 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. Section6(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 Page 10 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 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 Page 11 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. Phulavati. 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."
17. From above stated legal position and considering the facts of the case, finding recorded by the learned first appellate Court that there is no evidence on record that Salikram in his life time has done any partition and plaintiff and defendants No. 1 to 3 are class I heirs as provided in Schedule I of Hindu Succession Act, therefore, plaintiffs and defendants No. 1 to 3 are entitled to get equal share in the property. Thus, they are entitled to get 1/6 th share of the suit property. The findings recorded by learned first appellate court is in conformity with the provisions of Hindu Succession Amendment Act 2005 as well as judgment passed by the Hon'ble Supreme Court in case of Vinita Sharma (Supra), the substantial question of law framed by this Court is answered in favour of the plaintiffs and against the defendants.
18. It is also been contended by the learned counsel for the plaintiff that since respondent No. 5 - Radha Bai has expired, therefore, the plaintiffs and defendants No. 1 to 3 are entitled to get 1/5th share in Page 12 the suit property is not acceptable at this juncture as this issue was never raised before the first appellate Court, therefore, this Court is not examining the said submission. However, the parties are at liberty to agitate the said issue before the appropriate forum claiming share of deceased Radha Bai in accordance with law.
20. It is made clear that this Court has not expressed any opinion on the merits of claim so far as entitlement of late Radha Bai's share by the plaintiffs or defendants No. 1 to 3 is concerned.
21. In view of the aforesaid discussion, the second appeal fails and is hereby dismissed.
22. A decree be drawn-up accordingly. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Amita