Patna High Court
Shyam Narain Dayal And Anr. vs Smt. Leela Devi And Ors. on 27 April, 2000
Equivalent citations: 2000(2)BLJR1378
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT P.K. Deb, J.
1. This appeal has been preferred against the judgment and decree dated 20.7.1995 passed by Shri Tarkeshwar Pathak, Subordinate Judge, VII, Ranchi in Partition Suit No. 222 of 1993 decreeing the plaintiff-respondent No. IV suit for partition ascertaining her share to 10/56 over the joint family property.
2. The plaintiff-respondent No. 1 filed the above-mentioned partition suit seeking her 1/2 share over the property described in schedule of the plaint and also for allotment of her share separating Taktha on appointment of a survey knowing Advocate Commissioner and also for cost of the suit and other ancillary relief. The admitted position remains that one Bhujhawan Ram was the common ancestor of both the parties who died leaving behind his widow Kewala Kunar and a son Ram Niranjan Dayal. The said Ram Niranjan Dayal married twice. Tetar Kunari was his first wife while Jirkalo Devi defendant No. 6 (Appellant No. 2) is his second wife. Through Tetar Kunari Ram Niranjan Dayal has got a daughter Keela Devi, who is the plaintiff respondent No. 1 in the case. Through second wife Jinkalo Devi, Ratna Niranjan Dayal has got two sons, namely, Suryanarain Dayal (Defendant No. 1) Shyamnarain Dayal (defendant No. 2) appellant. No. 1 and three daughters Kamla Devi Defendant No. 3, Maya Devi, Defendant No. 4, and Friti Lata, Defendant No. 5. Tetar Kunari mother of plaintiff died on 17.1.1987 leaving behind plaintiff as her heir and legal representative. According to the plaintiff, the properties described in Schedule of the plaint is the joint family property of both the parties although the properties described in items No. I, II, III, IV and VII were recorded in the name of Kewala Kunari, mother of Ram Niranjan Dayal while Item Nos. V and VI were recorded in the name of Ram Niranjan Dayal The properties always remained joint and being possessed jointly by all the coparceners. It has been averred in the plaint that the defendant No. 2-appellant No. 1 Shyamnarain Dayal earlier filed the partition suit, being partition suit No. 238 of 1992 in the Court of Sub-Judge, Ranchi against the plaintiff, Jirkalo Devi and her children and in that partition suit, it was admitted by both the parties that the properties were joint and being jointly possessed by all the coparceners. But, the plaintiff with the motivated intention in that partition suit ultimately withdrew the suit stating some formal delects in the plaint. According to the plaintiff, he was not feeling convenient to remain joint with the defendants in respect of the suit properties and she was not in a position to beneficially enjoy her share in the property along with the defendants and, as such, she requested the defendants for amicable partition of the joint family but on this pretext or the other the defendants avoided the same and hence the present suit. The cause of action for the suit arose on 13.10.1993 and on other subsequent date when the plaintiff allegedly requested the defendants to effect amicable partition and refused by the defendants. Hence, the plaintiff claims her half share over the joint family property and for separate takhta and others as mentioned above.
3. The suit has been contested by defendant No. 2 Shy am Narain Dayal and defendant No. 6 Jirkalo Devi who are the appellants in the present appeal by filing joint written statement. Others have not con tested the suit. In the written statement, it was contended by the appellants-defendants that the suit was not maintainable in its present form, that the suit was barred by law of limitation, waiver, ouster and adverse possession and estoppel. According to the defendants, the plaintiff and the defendants are coming from the same Mitakshara Joint Family but the defendant Nos. 1 and 2 and their father Ram Niranjan Dayal till he was alive found the Hindu co-parcenary recognised under the Mitakshara School of Hindu Law. Although the geneology given by the plaintiff as per mentioned below has been admitted from the side of the defendants also:
Bhujhawan Ram : Kewala Kumar(1953) Ram Niranjan Dayal (20th Dec, 1958) : TetarKunar (17.1.97) : Jrikalo Devi (D-6) ________________________________________________________________ : : : : : :
Leela Devi Survanarain Shyamnarain Kamla Maya Priti Lata. Plaintiff Dayal Dayal Devi Devi (D-5) from 1st (D-1) (D-2) (D-3) (D-4) wife Tetar Kunar
4. According to the contesting defendants Ram Niranjan Dayal died intestate in the year 1958 as a co-parcener and, as such, he held 1/3rd share in the co-parcenary property and his share passed over to the defendant Nos. 1 and 2 by survivorship and by succession to the plaintiff and defendant Nos. 3 to 5 and also to two widows left, by him. On the principle of Hindu Succession Act, 1956 a notional partition immediately before the death of Ram Niranjan Dayal would be deemed and his 1/3rd share by survivorship would pass on to the co-parceners and by inheritance to the legal heirs enumerated in schedule to Section 8 of the Hindu. Succession Act, 1956 as Class I heirs. According to the defendants-plaintiffs, the defendant Nos. 3 to 6 and Tetar Kunari the first wife and Jirkalo Devi the second wife each inherited 1/8th of the 1/3rd and, as such, 1/ 24 became the share of the each of the co-parceners. It has been emphatically denied that the plaintiff got share besides 1/24th share in the joint family property and her claim for half share is totally inadmissible as per the provisions of law. The. prior partition suit, namely. P.S. 238 of 1992 has been admitted to have been filed by the defendant No. 2 but. according to the contesting defendants the averments in that plaint were misconceived and the claims/reliefs claimed were not according to law and, as such, the previous suit was withdrawn. According to the defendants so long Tetar Devi was alive she was maintained by the defendant Nos. 1 and 2 and she remained with them and she was not allotted any share-separately for her maintenance, and, as such, it has been claimed that the plaintiff is not entitled to any share in the dwelling house being item Nos. I and VI. It has also been stated that the. defendant Nos. 2 to 6 are in occupation of Item No. 6 and defendant No. 1 is in occupation of item No. 1, and both the contesting defendants are living with their family members. It is further stated that as the plaintiffs have not come up with declaration of her title which ought to have been done by giving advaloram Court fees of Rs. 50 lacs which was the valuation of the suit the present suit is not maintainable.
5. On the basis of the pleadings of the parties, following issues were framed by the learned trial Court:
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff valid cause, of action for the suit?
(iii) Is the suit barred by the principles of waiver, estoppel and ouster?
(iv) Is there unity of title and unity of possession between the parties to the suit in respect of suit properties?
(v) Has the plaintiff undivided 1/2 share in the suit Property?
(vi) Was Ram Niranjan Dayal absolute owner or 1/3 share in respect of the suit, properties?
(vii) To what relief or reliefs are the plaintiff entitled too?
6. Both parties adduced oral and documentary evidence in support of their respective contentions. Issue Nos. 3, 4, 5 and 6 which are the vital Issues had been taken up together by the learned trial Judge and decided in favour of the plaintiff but lessened the share of the plaintiff to the extent of 8/56 and regarding the other issues, those were decided in favour of the plaintiff and the suit was decreed preliminary for partition of the shares of the plaintiff and other defendants and according to the law holding that the plaintiff has got 8/56 share over the suit property. Before this appellate Court the only contention made on behalf of the defendants-appellants is with regard to the calculation of share by the learned trial Judge on the ground that the learned Court below misconceived the provisions of the Section 6 of the Hindu Succession Act, 1956 and also regarding the evaluation of the share of the two wives belonging to Ram Niranjan Dayal.
7. On proper scrutiny of the impugned judgment, it appears that the learned trial Court although advented to Sections 6, 8 etc. of the Hindu Succession Act but while considering the notional partition some calculation errors have been made. Section 6 of the Hindu Succession Act 1956 runs as follows:
Devolution of interest in co-parcenary properly. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest, in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left surviving him a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship.
Explanation.-For the purposes of this 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.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
If we construe the first paragraph along with the Explanation-1 of Section 6 then it becomes clear that the devolution of shares in the co-parcenary property shall go by survivorship on a notional partition being made immediately before the death of male coparcener. In the present case following that principle Ram Niranjan Dayal had two wives, two sons and four daughters but if notional partition is to be construed as Ram Niranjan Dayal died on 25.6.1958 then the property would devolve by survivorship and not intestate succession and in that way the shares will devolve in the following manner: (i) Ram Niranjan Dayal 1/4th Share: (ii) two wives Tetar Kuer and Tirkalo Devi jointly 1/4th share; (iii) Suryanarain Dayal son 1/4th share (iv) Shyamnarain Dayal, son 1/4th share. After the death of Ram Niranjan Dayal his 1/4th share as mentioned above would devolve as per intestate succession as contained under Section 8 of the Hindu Succession Act and all the heirs who are parties to the partition suit being Class I heirs, the devolution would be in the following manner: Regarding 1/4th share of Ram Niranjan Dayal he left behind wives, two sons and four daughters, so each would get 1/7th of the 1/4th share of Ram Niranjan Dayal. In that way, the plaintiff Lila Devi would get 1/20th share while Tetar Kuer and Jirkalo Devi jointly would get 1/4th 1/28th Similarly, Suryanarain Dayal and Shyamnarain Dayal would get 1/4th + 1/28th share each. The other three daughters, Kamla Devi, Mayal Devi and Pritlata would get 1/28th share each. Now the plaintiff Lila Devi has claimed share over her mother's property namely Tetar Kuer. Whether Tetar Kuer's share can be devolved as per succession or not is the question to be decided. As per the Hindu Law the female coparcener gets the share with the right of survivorship. When two wives were there they would get the share of the wife as per devolution jointly and their shares remained joint for the purpose of survivorship as one unit and their shares cannot be construed as half & half share over the share received by survivorship having the right of other coparceners to get the share by survivorship from them. It has become the settled principle of law that two wives receiving the shares should be construed as joint tenant and not with the principle of tenant in common and in that way Tetar Kuer's share as a joint tenant with Jirkalo Devi on her death would not go by inheritance but by survivorship and hence whatever shares two wives got would remain as a unit for the share of the wives and, as such. Tetar Kuer's share cannot be construed as a half share along with Jirkalo Devi for the purpose of succession rather the same shall be survived on Jirkalo Devi on death of Tetar Kuer on 17.1.1987 and in that way Lila Devi the plaintiff would not be entitled to get share of Tetar Kuer so long Jirkalo Devi remains alive. Thus, the devolution and succession of the properties should remain in the following manner:
(i) Lila Devi plaintiff 1/28th
(ii) Jirkalo Devi defendant No. 6 1/4th + 1/28th
(iii) Surajnarain Dayal Defendant No. 1. 1/4th + 1/28th
(iv) Shyamnarain Dayal defendant No. 2 1/4th + 1/28th
(v) Kamla Devi defendant No. 3. 1/28th
(vi) Maya Devi defendant No. 4. 1/28th
(vii) Prti Lata defendant No. 5. 1/28th
8. Mr. N.K. Prasad, learned Senior Counsel regarding the devolution of the share of Tetar Kuer as claimed from the side of the plaintiff Lila Devi has negatived by referring to the principle of joint tenancy and tenancy in common and in this respect he has referred to a judgment of the apex Court as and Ors. v. Nagarathinathachi wherein it was held that as per the provisions of the Hindu Law co-widows inherits the husband's property as joint tenant with, the rights of survivorship and not as tenant in common for the purpose of intestate succession as per Section 14 of the Hindu Succession Act. In that judgment, it has been elaborately discussed by the apex Court as to the rights of the co-widows on the inherited property from their husband. Therein, it was held that even in the life time of the co-widows they can get their shares partitioned for the purpose of proper enjoyment and may have separate allotments but such allotments even if it is there that is subject to the right of the survivorship and not to be construed as an absolute right. In the present case, there is no evidence to the effect that Tetar Kuer and Jirkalo Devi had got their shares separated rather it. remained with them being jointly possessed not only by them alone but also by the other coparceners and when partitions come in then their share should be devolved by survivorship and not intestate succession.
9. On this legal aspect, the learned Counsel appearing for and on behalf of the plaintiff-respondent Mr. Choudhary could not disagree as the submission of Mr. N.K. Prasad is on the settled principle of law and on the face of it. It appears that the learned Court below has committed error in computing the shares of different coparceners in the joint property. Thus the learned Court below although decreed the plaintiffs suit after considering the property being joint but committed error in calculating her share which requires modification in this first appeal.
10. In the result, the appeal is allowed to the extent that the judgment and decree of the learned Court below shall be upheld with the modification in the shares of the different coparceners including that the plaintiff. Plaintiffs share shall be only 1/28th over the joint family property described in schedule of the plaint. Considering the facts and circumstances of the case no cost is awarded to either of the parties in modifying the decree in the first appeal. Thus the suit is decreed preliminary and the learned Court below shall have to proceed for allotment of shares by appointment of survey knowing pleader commissioner for separate taktha of the plaintiff and the interested co-parcenars for their separate shares. It appears that much water has flown by this time because of the appointment of the receiver and the modification of the order of appointment of receiver time to time and on such process definitely the parties to the suit are suffering and, as such, it is hereby directed that the learned Court below shall process the preparation of final decree immediately and conclude the same within three months next from the date of the receipt of the records of the Court below. The latest order passed in respect of the receiver shall be in vogue till such allotment is made and unless there is any sort of delay the said process of receiver which is in vogue should not be altered but the receiver appointed should be subject to the conditions of appointment and also accounts belong submitted to the Court below as per law, and also as per the order passed by this Court time to time.