Punjab-Haryana High Court
Raj Rani vs Radhey Shyam And Anr. on 24 March, 1994
Equivalent citations: (1994)107PLR681
JUDGMENT S.K. Jain, J.
1. Plaintiffs Radhey Sham, Rajinder Nath Sharma and Suridner Nath Sharma are the sons and Smt. Raj Rani is the daughter of Chander Bhan who died on 10.2.1979. His wife pre-deceased him somewhere in the year 1956. He owned and possessed 15/16 share in the agricultural land fully described in para No. 1 of the plaint. The plaintiffs Filed Civil Suit No. 555/1986 on 18.7.1983 for a decree of declaration to the effect that they were owners in possession of 3/4th + 3/16th = 15/16th share in suit land bearing khewat No. 2744, khatauni No. 3369, Killa Nos; 3802/1702, measuring 2 Bighas 3 Biswas situated within the revenue estate of Gurgaon, Tehsil and District Gurgaon, against their sister the defendant. It was pleaded that they constituted a joint Hindu family with their father Chander Bhan. They were Brahamin by caste and governed by Hindu Law in the matters of alienation in succession and Chander Bhan was karta of Joint Hindu Family Property and the plaintiff being coparceners had interest in the suit land by virtue of their birth and survivorship. On the death of Chander Bhan they being coparceners become owners of 15/16 share in the property left by him and the defendant was entitled to only l/6th share according to Hindu Succession Act. The Municipal limits of Gurgaon Municipal Committee having been enlarged the land in dispute has ceased to be agricultural land. It was further pleaded in the suit that Chander Bhan in his life time had divided the suit land in four equal shares thereby giving l/4th share each to the plaintiffs whereas remaining l/4th share was retained by him and thence forth the plaintiffs are owners in possession of their respective shares. Mutation No. 7658 dated 16.7.1980 with regard to the inheritance of Chander Bhan in favour of the plaintiffs and defendant in equal shares was illegal and void.
2. The suit was contested by the defendant. She denied everything under the son. Parties fought the litigation on the following issues :-
1. Whether the plaintiff and their father constituted a joint Hindu Family? OPP
2. Whether the property in suit is joint Hindu Family Property? OPP
3. Whether any partition took place during the life time of Chander Bhan, deceased who had the parties on as alleged? OPP
4. Whether the plaintiffs are owners in possession of 15/16 share out of the said property as alleged? OPP.
5. Whether mutation No. 7658 dated 16.7.1980 sanctioned in favour of the properties to the suit in wrong and inoperative against the interest of the plaintiff?
6. Whether the plaintiffs are estopped by their Acts, conducts and acquiescence from filing the present suit? OPD
7. Whether the defendant are entitled to costs Under Section 35A CPC? OPD.
8. Relief?
3. Sub Judge 1st Class, Gurgaon, vide his judgment and decree dated 4.4,1987 dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiffs filed Civil Appeal No. 35/13 of 13.5.1987. It was heard by the District Judge, Gurgaon, who vide his judgment and decree dated 2.11.1987 accepted the appeal and set-aside the judgment and decree of the learned trial Court and granted a decree for declaration to the effect that they were joint owners in joint possession of the property in suit to the extent of 15/16th share and that the defendant-respondent was joint owner in possession to the extent of l/16th share.
4. It is that judgment and decree of the first Appellate Court which has been appealed against by the defendants and which requires my examination of its sustainability.
5. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgment of both the courts below.
6. It has been found by the Courts below that the property in dispute was co-parcenery property of the parties and their father Chander Bhan whose wife had pre-deceased him; that partition had not taken place during the life time of Chander Bhan and that a notional partition will have to be made in order to ascertain the shares of the parties who are his sons and daughter.
7. Section 6 of the Hindu Succession Act deals with devolution of interests in a co-parcenary property. It reads as under:-
"6. When a male Hindu dies after the commencement of this Act, having at the time of his death and interest in a Mitakshara coparcenary property, his interest in property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act;
Provided, that of the deceased had left him surviving 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 the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."
Explanation:- 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."
8. When the facts and circumstances of this case are tested on the envil of the provision of above referred Section 6 (explanation No. 1 in particular) of the Act it would become clear that the wife of Chander Bhan having predeceased him he would be entitled to l/4th share as the defendant being his daughter was not a member of the co-parcenary and, therefore, was not entitled to any share in his estate. At the time of his death Chander Bhan left behind l/4th share in the property in dispute to be inherited by his sons and daughter namely, the three plaintiffs and the respondent. Each of them would get 1/16th share in the 1/4th share so left behind by him. Learned Lower Appellate Court had rightly held that four grand-sons of Chander Bhan were not entitled to separate share during the life time of their respective fathers.
9. Argument of the learned counsel for the defendant-respondent to the effect that there was a conflict between Sections 6 and 8 of Hindu Succession Act is without any force. Section 8 applies to the property of a male Hindu dying intestate after the commencement of Hindu Succession Act. Section 6, however, permits coparcenary property to devolve by survivorship, and hence where Section 6 (main provision) applies Section 8 would have no application. If the deceased is the sole surviving coparcenar at the time of his death there being no other surviving member of the coparcenary, Section 6 would not apply. In such a case Section 8 applies and the divided sons will get by succession as if it were the separate property of the propositus. Further, Section 8 does not apply to cases of properties expressly excluded from the scope of the Hindu Succession Act by virtue of Section 5. The property that is governed by the Provisions of Section 8 is:-
(i) the separate property of a Hindu Male;
(ii) the share of a Hindu Male in a joint Hindu Family property dying intestate and governed by Mitakhsara law leaving a female heir mentioned in Class (I) heirs or any male in Class (I) claiming through such female heir.
In this regard a reference can be hand to Smt. Raj Rani v. The Chief Settlement Commissioner Delhi, A.I.R. 1984 S.C. 1234, wherein it was held: "where a Hindu died after the enforcement of the Act leaving behind him his widow, three sons and three daughters, the devolution of his Mitakhsara coparcenary property would be, as follows:
10. In view of explanation I to Section 6 he would have got 1/5th interest on partition between him and his wife and three sons. If once his interest was determined to be l/5th before his death, his interest would devolve upon his widow, three sons and three daughters, equally and this the share of each one of them would be l/5th x l/7th that a l/35th each and as the widow had inherited the interest of her husband after his death her share would be augmented by 1/5 that is 1/35 + 1/5 = 8/35".
11. In the above view of the matter no fault can be found with the finding of the first Appellate Court recorded on issue No. 1 thereby reversing the finding of the trial Court and holding that the plaintiff/appellants were entitled to 15/16th share each in the property in dispute.
12. Learned counsel for the respondent has vehemently argued that the appellants were estopped by their act and conduct from claiming their share over the above the shares mutated in their names because one of them was present at the time of sanction of the mutation. In order to appreciate this argument provisions of Section 115 of the Indian Evidence Act are required to be examined. The same are as under :-
"115. Estoppel. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
13. In order to bring the case within the mischief of this Section. It is necessary that there should first be a declaration, act or omission. That declaration, act or omission must be intentional and should have caused or permitted any person to believe a thing to be true and to act upon such belief to his detriment. Copy of mutation Ex. P-4 shows that Radhey Shyam appellant was present before the Mutation Officer and it was confirmed by Mahinder Singh Lamberdar that Chander Bhan had died and the plaintiff and defendant were his heirs. The property had consequently been mutated in favour of the said four heirs in equal shares. Feeling aggrieved by the said mutation the appellants have brought this suit. If they had a statutory right how could there be an estoppel against the same. Mere presence of Radhey Shyam, one of appellants before the Mutation Officer would not make the mutation legal if it is hit by the provisions of Section 6 read with Section 8 of the Hindu Succession Act. In support of the above view, a reference can be had to Niamat Singh v. Darbari Singh, A.I.R. 1956 Punjab 230.
14. In view of the above discussion, the finding of the first Appellate Court to the effect that the appellants are not estopped by their own act and conduct from filing the suit, is also upheld.
15. As a sequel to the above discussion, no fault can be found with the well reasoned judgment of the learned first appellate Court which is under appeal and the same is hereby upheld. Consequently, this appeal fails which be and is hereby dismissed, No costs.