Allahabad High Court
Satish Kumar And Another vs Vinod Kumar And 6 Others on 7 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1934
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 148 of 2014 Appellant :- Satish Kumar And Another Respondent :- Vinod Kumar And 6 Others Counsel for Appellant :- K.M. Agarg,Alok Kumar Yadav,Ishwar Chandra Tyagi,Suresh Pratap Singh Counsel for Respondent :- Ganesh Shankar Pandey,S.K.Pandey,Sukendu Pal Singh Hon'ble Vivek Agarwal,J.
Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Sukendu Pal Singh, learned counsel for the respondents.
This second appeal has been filed by the defendant nos. 1 and 2 before the learned Trial Court being aggrieved by judgment and order dated 26.11.2013 and decree dated 07.12.2013 passed by learned Additional District Judge, Court No. 6, Bijnor in Civil Appeal No. 6 of 2012 by which learned First Appellate Court has dismissed the appeal filed by defendant nos. 1 and 2 i.e., the present appellants affirming the judgment, order and decree dated 13.12.2011 passed by the Court of learned Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No. 1, Bijnor in Original Suit No. 409 of 2006 by which the said suit is decreed.
Brief facts leading to the present second appeal are that plaintiff- Vinod Kumar had filed a suit for partition and injunction mentioning in his plaint that plaintiff and defendant nos. 1, 3, 4 and 5 are children of Prasadi Lal who died on 18.10.1979. Plaintiff, defendant nos. 1, 3, 4 and 5 are respectively having sibling relationship as defendant no. 1 is the brother of the plaintiff, defendant nos. 3, 4 and 5 are sisters of the plaintiff whereas defendant no. 2 is the wife of defendant no. 1 and defendant nos. 6, 7 and 8 are legal heirs of Late Sri Arvind Kumar, third son of Late Sri Prasadi Lal.
According to the plaintiff when Sri Prasadi Lal died besides six children, his wife was alive and therefore, each of the legal heirs i.e., the wife of Sri Prasadi Lal and six children of Sri Prasadi Lal were bequeathed with 1/7th share in the suit property. Sri Arvind Kumar had executed a sale deed of his 1/7th share of the property in favour of the defendant no. 2 and therefore, defendant no. 2 has 1/7th share in the suit property. Smt. Sukhdei, wife of Sri Prasadi Lal died on 15.09.2001 and upon her death, plaintiff, defendant nos. 1, 3, 4 and 5 attained 1/6th share in the suit property whereas share of the defendant no. 2 remained 1/7th share and that of defendant nos. 6 to 8 as 1/42th share. It is the contention of the learned counsel for the appellant that as per the plaint averments, plaintiff's case is that no partition either oral or written had taken place between the parties and therefore, the suit was filed by the plaintiff so to claim partition of his 1/6th share in the suit property vis-a-vis the defendants also claimed that the defendant nos. 1 and 2 be restrained from causing any alteration or addition in the suit property so to change its nature during the pendency of the suit.
Defendant nos. 1 and 2 opposed such reliefs and claimed that partition had already taken place during the life time of Sri Prasadi Lal and therefore, suit is not maintainable and prayed for dismissal of the suit whereas defendant nos. 3, 4 and 5 admitted that no partition had taken place at any point of time. Under such facts and circumstances, recording the evidence of the rival parties, learned Trial Court recorded a finding that the suit property was not partitioned and therefore, declared that plaintiff has 1/6th share in the suit property and further directed the defendant nos. 1 and 2 not to cause any change in the nature or shape of the suit property.
Being aggrieved by such judgment and decree, defendant nos. 1 and 2 had filed a regular civil appeal in the Court of learned Additional District Judge, Bijnor which too is dismissed holding that each of the shareholder has possession of each part of the suit property and none of the parties have a right to cause any alteration or addition without obtaining partition and thus, upheld the judgment and decree passed by the learned Trial Court.
This second appeal as has been filed by the defendant nos. 1 and 2 was admitted by a coordinate Bench of this Court on 14.02.2014 on the following three substantial questions of law:-
1. Whether the suit for partition is not maintainable inasmuch as the registered sale deed dated 31.1.1991 is not challenged and no relief for cancellation of the same or to declare it void is sought eight by the plaintiff or defendant nos. 3 to 8 ?
2. Whether the registered sale deed dated 31.1.1991 in itself is indication and proof of separation of joint properties inasmuch as the same is not challenged either by plaintiff or defendant nos. 3 to 8 and appellant nos. 1 and 2 have 1/3rd share each in suit property ?
3. Whether even in alternative, the appellant no. 2 (defendant no. 2), would have 1/6th share in the suit property in view of the fact that Arvind Kumar sold his total share and even in view of section 43 of Transfer of Property Act and heirs of Arvind Kumar would get nothing in the suit property ?
In view of the documentary and oral evidence available on record, these substantial questions of law are to be decided.
Learned counsel for the appellant Sri Alok Kumar Yadav submits that both the learned courts below have erred in overlooking the evidence adduced by the defendant and thereafter holding that suit property was not partitioned during the life time of Sri Prasadi Lal. It is submitted that plaintiff was not entitled to file a suit for partition without seeking cancellation of the sale deed dated 31.01.1991 executed by Sri Arvind Kumar who is represented by defendant nos. 6, 7 and 8. It is also submitted that registered sale deed dated 31.01.1991 itself is proof of separation of joint property and therefore, after Arvind Kumar having sold his total share in the suit property, then legal heirs of Late Arvind Kumar will not get any share in the suit property.
In his turn, learned counsel for the respondent Sri Sukendu Pal Singh supports the judgment and decree and submits that there is no illegality in the said judgment and decree calling for any interference and therefore, the appeal deserves to be dismissed and be dismissed.
Before proceeding to answer the substantial question nos. 1 and 2, it will be germane to answer substantial question no. 3 which is purely a legal question and which does not require any elaborate appreciation of evidence or material available on record. It is true that Sri Arvind Kumar had inherited 1/7th share in the suit property along with his mother and other siblings. During the life time of his mother Smt. Sukhdei and after death of his father Sri Prasadi Lal on 18.10.1979, Sri Arvind Kumar had executed a sale deed of his share of property in favour of defendant no. 2. Defendant no. 2 had taken possession of the said property. However, it is equally true that till the death of Smt. Sukhdei, Arvind Kumar had 1/7th share in the suit property. Defendant nos. 6, 7 and 8 by virtue of legal heirs of Sri Arvind Kumar, and being legal heirs of Smt. Sukhdei, being son of predeceased son (defendant no. 8), daughter of predeceased son (defendant no. 7) and widow of predeceased son (defendant no. 6) became class-1 heirs of Smt. Sukhdei. Therefore, in terms of the provisions contained in Sections 9 and 10 of the Hindu Succession Act, 1956, they have a share in the estate of Smt. Sukhdei. Provisions contained in Section 43 of the Transfer of Property Act will not come into play because Sri Arvind Kumar was not an unauthorised person who subsequently acquired interest in the property transferred and therefore, it is held that heirs of Sri Arvind Kumar will get their due share out of share of Smt. Sukhdei as per the Laws of Succession.
As far as substantial question nos. 1 and 2 are concerned, they can be answered simultaneously and are therefore, taken together. As per the provisions contained in the Partition Act, 1893, Section 4(1) provides that where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertaken to buy the share of such transferee, make a valuation of such share in such an owner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. This provision itself demonstrates that share of Hindu undivided family can be alienated by a co-sharer to the extent of his own share subject to the rights of the purchaser to claim partition. In this regard, law laid down by the Hon'ble Supreme Court in case of Nasib Kaur and others vs. Col. Surat Singh (D) through legal heirs and others as reported in 2013 (5) SCC 218 is relevant and therefore, by implication it is held that sale deed executed by one of the co-sharers is valid to the extent of such share of co-sharers in the joint undivided property and if another co-share seeks partition, then there is no need to challenge the sale deed if it is not exceeding the share of the co-sharer who has executed the transfer deed.
From this very discussion, it follows that registered sale deed dated 31.01.1991 itself is not a communication and proof of separation of joint properties and the evidence which has been led by the parties in this regard is to be seen and appreciated. In the present case, except for defendant nos. 1 and 2, plaintiff and defendant nos. 3 to 5 admitted that no partition had taken place. To prove the factum of partition, it was submitted before the learned Trial Court that three brothers had partitioned the suit property on 14.10.1990 in front of the witnesses and the relatives and on the basis of such partition, they had separated from their joint shares and had taken possession of share of the property which had come in account of each of the co-sharers. This submission of the defendant nos. 1 and 2 was sought to be supported by the defendant nos. 1 and 2 by leading evidence of DW2- Surendra Chandra.
Learned Trial Court has place reliance on the judgment of Mst. Rukhmabai vs. Lala Laxminarayan and others as reported in AIR 1960 SC 335 that there will be a presumption of joint Hindu family unless partition is proved. Beginning from this foundation, learned Trial Court has appreciated a fact that as per the averments of the defendant nos. 1 and 2 in the partition which was allegedly effected on 14.10.1990, northern portion was given to Sri Arvind Kumar which he had sold in favour of defendant no. 2 on 31.01.1991. Central portion had gone to Sri Satish Kumar i.e., defendant no. 1 whereas southern portion had gone to the plaintiff- Vinod Kumar. However, it has been appreciated on the basis of the material on record that the application which was filed by Sri Satish Kumar i.e., defendant no. 1 before the prescribed authority accompanied with an affidavit which was filed on record as document no. C-10, in the boundaries of the properties shown by Sri Satish Kumar, he has not shown property of Sri Vinod Kumar on his south but has depicted the property of defendant no. 2- Smt. Rita Bishnoi in south of his share. Similarly, the application which was furnished by Smt. Rita Bishnoi before the competent authority, there is no mention of the boundaries so to depict the property of Sri Vinod Kumar. It has also come on record that DW2- Surendra Chandra could not establish his relation with Sri Prasadi Lal and was found to be tutored witness, therefore, it is decided that both through the oral as well as documentary evidence, defendant nos. 1 and 2 could not prove the factum of partition of the suit property.
In view of such minute appreciation of evidence, appellants could not prove the substantial question nos. 1 and 2 by taking this Court through any cogent material or evidence on record and therefore, these two substantial questions of law as framed by my predecessors, too are answered against the appellants and therefore, the concurrent findings to the fact recorded by the learned courts below are affirmed and accordingly, appeal is dismissed.
Order Date :- 7.1.2020 Vikram/-