Madhya Pradesh High Court
Smt.Kunti Desai vs Smt Kirti on 5 December, 2024
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 FA No.1026/2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 5th OF DECEMBER, 2024
FIRST APPEAL No. 1026 of 2005
SMT.KUNTI DESAI (DEAD) THR. LRS. SMT. BHAVANA PRAN
SHANKAR DANAYAK AND OTHERS
Versus
SMT KIRTI AND OTHERS
Appearance:
Shri Akhilesh Jain-Advocate for the appellants.
Shri Anurag Tiwari-Advocate for respondent 4.
JUDGMENT
This first appeal is preferred by original plaintiff-Smt. Kunti Desai (now dead, through LRs.-Smt. Bhavana Pran Shankar and 2 others) challenging the judgment and decree dtd.28.10.2005 passed by 1st Additional District Judge, Damoh in civil suit No.44-A/2000 whereby trial court has decreed the suit partly in respect of house as described in paragraph 46 of the impugned judgment.
2. This appeal was admitted for final hearing on 07.12.2005 and being old one, having 3 connected MCCs, (filed in respect of breach of interim orders, passed in first appeal), with the consent of counsel for the appellant is heard finally.
3. In short the facts are that the plaintiff instituted a suit for partition of the properties mentioned in schedule A, B, C & D to the plaint, with the allegations that father of the plaintiff had several movable and immovable properties purchased by his own income, which was in his name and in the Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM 2 FA No.1026/2005 name of his sons and as such claiming herself to be share holder of ¼ share, prayed for partition.
4. Defendants 1-5 appeared and filed written statement denying the plaint allegations with the contentions that the property was owned and possessed by their father namely Ramesh Chandra Dhagat and not by plaintiff's father Laxmi Shankar Dhagat. The property in possession of the defendants 1-5, is self acquired property of Ramesh Dhagat, though some property was received on the basis of Will executed by Late Prem Shankar Dhagat (son of Laxmi Shankar Dhagat from first wife), in respect of which probate certificate was also issued on 14.02.1991, which all has been in the knowledge of plaintiff but deliberately and with an intention to harass the defendants 1-5, the suit has been filed, after death of plaintiff's real brother Ramesh Chandra Dhagat, which deserves to be dismissed.
5. The defendants 15-17 also filed written statement with the allegations that the defendants 15-17 had purchased the property from Krishna Pyari (daughter of Laxmi Shankar Dhagat from first wife), in which the plaintiff or Ramesh Chandra Dhagat had no right. The defendants 15-17 are in possession of the property purchased by them and they are bonafide purchasers, in which plaintiff or defendants 1-14 have no right. On inter alia contentions, the suit was prayed to be dismissed.
6. On the basis of pleadings of the parties, trial court framed issues and recorded evidence of the parties and vide impugned judgment and decree dtd.28.10.2005 decreed the suit partly in respect of the house, as mentioned in paragraph 46 of the impugned judgment, holding it to be belonging to Laxmi Shankar Dhagat and plaintiff being daughter has been held to be entitled for 1/5 share and separate possession after partition.
Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM 3 FA No.1026/20057. Being aggrieved by the aforesaid judgment and decree, instant first appeal has been filed by the appellant/plaintiff.
8. Learned counsel for the appellant/plaintiff submits that trial court has committed illegality in decreeing the suit partly only in respect of one house, whereas all the properties mentioned in schedule A, B, C & D were purchased by Laxmi Shankar Dhagat from the nucleus of joint Hindu family, which was having joint business being run by Laxmi Shankar Dhagat, Prem Shankar Dhagat and Ramesh Chandra Dhagat. He submits that the aforesaid factum is proved by the document (Ex.P/3) containing admissions regarding jointness of the properties, which is a statement of Shri Ramesh Chandra Dhagat given by him in previous civil suit No.9-A/1999. He submits that as per settled law if the plaintiff is able to prove availability of nucleus in the joint Hindu family for purchasing the properties, then there is presumption of jointness of the properties. In this regard learned counsel for the appellant placed reliance on a decision of Hon'ble Supreme Court in the case of Surendra Kumar vs. Phoolchand (dead) thr. LRs. and another, AIR 1996 SC 1148.
9. Further, he submits that because admission is best piece of evidence, therefore, admissions made in statement (Ex.P/3) by Ramesh Chandra Dhagat in previous civil suit, are sufficient to hold that the suit properties are joint Hindu family properties of the parties. In this regard he placed reliance on a decision of Hon'ble Supreme Court in the case of S.R. Srinivasa and Ors. Vs. S. Padmavathamma, (2010) 5 SCC 274 (para 31&32). He further submits that trial court has dismissed the suit on the ground that the plaintiff has not claimed relief for cancellation of sale deeds executed in favour of brothers of plaintiff. By placing reliance on a decision of Hon'ble Supreme Court in the case of S.K. Golam Lalchand vs. Nandu Lal Shaw @ Nand Lal Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM 4 FA No.1026/2005 Keshri @ Nandu Lal Bayes and others in Civil Appeal No.4177 of 2024 dated 10th September, 2024, he submits that in the existing facts and circumstances of the case relief for cancellation of sale deeds was not required. With these submissions he prays for allowing the first appeal.
10. Heard learned counsel for the appellant and perused the record.
11. In the instant appeal following points for determination are arising for consideration of this Court :-
i. Whether in absence of clear pleadings and proof, it can be held that the property standing in the exclusive name(s) of members of joint Hindu family, is the property of joint Hindu family and is liable to be partitioned amongst the members of family ?
ii. Whether in absence of plea in the plaint about availability of nucleus to purchase the suit property, ambiguous admissions made in a statement by father of defendants 1-5, can be made basis for passing decree of partition in favour of the plaintiff ?
12. In the present case, the plaintiff had instituted the suit simplicitor for partition of the properties covered by Schedule A, B, C & D claiming herself to be owner of ¼ share and no relief of declaration to the effect that the suit properties are joint Hindu family properties, has been claimed.
13. In paragraph 2 of the plaint, the plaintiff has averred that father of the plaintiff had several movable and immovable properties purchased from his own income, which were in his name and in the name of his sons, as described in Schedule A, B, C & D. Except these pleadings, no other plea has been made in the plaint to the effect that the properties covered by Schedule A, B, C & D were purchased by plaintiff's father from the nucleus of joint Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM 5 FA No.1026/2005 Hindu family or there was any nucleus in the joint Hindu family to purchase the properties in the name of plaintiff's brothers. Even no details of purchase of the properties in the name of father of plaintiff or her brothers, have been given in the plaint.
14. The plaintiff is claiming right in the suit property only on the basis of some alleged admissions in the statement (Ex.P/3) of Ramesh Chandra Dhagat given by him in previous suit. However, perusal of statement (Ex.P/3) does not show that it was given in respect of the suit properties, therefore, on that basis the suit for partition of the properties standing in the exclusive name of defendants 1-5's father cannot be decreed.
15. Upon due consideration of oral and documentary evidence available on record, trial Court has held that only one house belongs to father of the plaintiff, as such holding it to be property of joint Hindu family held the plaintiff to be entitled for 1/5 share.
16. As in the plaint, the plaintiff has not made any pleading in respect of availability of nucleus for purchasing the properties in the name of her brothers and even no evidence has been led in that regard, therefore, in my considered opinion trial court does not appear to have committed any illegality in passing the judgment and decree discarding the plaintiff's claim in respect of other properties except the property mentioned in paragraph 46 of the judgment and decree.
17. Resultantly, declining interference in the impugned judgment and decree, instant first appeal fails and is hereby dismissed.
18. Misc. Application(s), pending if any, shall stand closed.
Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM 6 FA No.1026/2005(DWARKA DHISH BANSAL) JUDGE ss Signature Not Verified Signed by: KUMARI PALLAVI SINHA Signing time: 12/7/2024 2:50:23 PM