Madhya Pradesh High Court
Akhilesh Singh vs Hukum Singh on 9 April, 2025
1 FA-167-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
FIRST APPEAL No. 167 of 2008
AKHILESH SINGH AND ANOTHER
Versus
HUKUM SINGH AND OTHERS
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Appearance:
Shri A.V. Bhardwaj - Advocate for the appellants.
Shri K.N. Gupta learned Senior Counsel with Ms. Suhani Dhariwal-
Advocate for the respondents.
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Whether approved for reporting: Yes/No.
Reserved for order on: 03/04/2025
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JUDGMENT
(Passed on 09/04/2025) The appellants (hereinafter referred as 'plaintiffs') have filed this appeal under Section 96 of Code of Civil Procedure challenging the judgment and decree dated 28.03.2008 passed by Additional Judge to the Court of First Additional District Judge, Datia (M.P.) in Civil Suit No. 18- A/2007 whereby, suit for declaration of their share in the suit property, declaration that the sale deed executed by defendant no.1 (hereinafter referred as 'Hukum Singh') in favour of defendant no.5 is null and void and also for decree of permanent injunction, has been dismissed by the trial Court.
[2]. This appeal has been contested by respondent/defendant no.5 alone. [3]. The facts which are not in dispute are that the suit property originally belonged to one Prem Narayan. Defendant no.4 - Smt. Ramshri Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 2 FA-167-2008 is the widow of Prem Narayan while defendant no.1 (Hukum Singh) and defendant no.2 & 3 are his sons. The plaintiffs are the sons of Hukum Singh. It is also not in dispute that Hukum Singh has executed a sale-deed dated 10.05.2006 (registered on 18.05.2006) in favour of defendant no.5 in respect of 0.40 hectares of land which is the suit property in the instant case.
[4]. The plaintiffs filed the present suit inter-alia on the ground that the Khasra No.61 & 126/2 ad-measuring 1.95 hectares situated at Village Patharra Narayan, Tehsil Bhander, District Datia (M.P.) was originally belong to their grandfather - Prem Narayan. During settlement, the aforesaid two Khasra numbers were consolidated and renumbered as Khasra No.77. It is the case of plaintiffs that it being a coparcenary property, they have the interest/share in the aforesaid property by birth. They submit that their father Hukum Singh was addicted to alcohol and taking advantage of this, defendant no.5 got the sale-deed, in respect of 0.40 hectares of aforesaid land, executed in her favour on 10.05.2006. They submit that it being a coparcenary property, their father Hukum Singh was not competent to execute the sale-deed and that the aforesaid sale is not for satisfaction of legal necessity of the family. The plaintiffs thus sought declaration that they have 1/4 th share in the share of Hukum Singh and the sale deed executed by Hukum Singh in favour of defendant no.5 be declared as null and void being without competence and illegal. [5]. The defendant no.1 to 4 filed a common written statement but thereafter they remained ex-parte before the Trial Court. A bare perusal of written statement shows that the entire claim of the plaintiffs is accepted by defendant no. 1 to 4. Surprisingly, the allegation with regard to the bad habits of Hukum Singh are also accepted in toto.
[6]. The defendant no.5 contested the suit by filing the separate written Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 3 FA-167-2008 statement. It was submitted that the property in the hands of Hukum Singh was not the coparcenary property and, therefore, he was competent to execute the sale deed. It is further pleaded that he was the karta of the family and the sale was in respect of legal necessity of the family inasmuch as the daughter of Hukum Singh was to marry within a short period of time. Thus, she prayed for dismissal of the suit. [7]. Learned Trial Court after taking evidence of both the sides, has dismissed the suit holding that though the suit property is the coparcenary property of the family, the sale deed executed by Hukum Singh in favour of defendant no.5 is not null and void. The suit was held to be not valued properly and the plaintiffs were directed to pay the deficit court fee in respect of their prayer for declaration of sale deed as null and void. Being aggrieved by the aforesaid judgment and decree, the appellants/plaintiffs have filed the present appeal.
[8]. Learned counsel for the appellants primarily submit that the suit property is the coparcenary property in the hands of Hukum Singh and they being member of coparcenary, have interest in the property by birth. It is his submission that Hukum Singh was not competent to execute the sale deed in respect of suit property in favour of defendant no.5. Learned counsel for the appellants further submitted that in the facts of the case, the factum of sale being for legal necessity is not established. He relied upon Section 6 of The Hindu Succession Act, 1956, (in short 'Act of 1956') to say that the distribution of the property would be governed by Section 6 and not by provisions of Section 8 of the Act. He relied upon the judgment rendered by Apex Court in the case of Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum & Ors. reported in AIR 1978 SC 1239, Smt. Raj Rani Vs. Chief Settlement Commissioner Delhi & Ors. reported in AIR 1984 SC 1234, Commissioner of Wealth Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 4 FA-167-2008 Tax Kanpur & Ors. Vs. Chander Sen and Ors. reported in AIR 1986 SC 1753, Uttam Vs. Saubhag Singh & Ors. reported in (2016) 4 SCC 68, Vineeta Sharma Vs. Rakesh Sharma and Ors. reported in (2020) 9 SCC 1 and the judgment rendered by this court in the case of Bhawri Bai & Ors. Vs. Hari Singh & Ors. reported in 2006 (III) MPJR SN 19 and Vijay Goyal Vs. Madanlal Goyal and Ors. reported in 2007(3) JLJ 140. [9]. Learned counsel for the respondent no.5 on the other hand relied upon Section 4 of the Act of 1956 which provides for overriding effect of the Act of 1956 and submitted that the concept of coparcenary does not exist after coming into force of Act of 1956. Now the distribution of property is governed by Section 8 of the said Act. He further submits that since the father Hukum Singh is alive, the plaintiffs are not entitled to claim their share in the property during his life-time. He further submits that the sale deed was executed on 10.05.2006 and was registered on 18.05.2006. Soon thereafter the marriage of daughter of Hukum Singh took place on 02.06.2006 and, therefore, apparently the sale of suit land by Hukum Singh in her favour is based upon the legal necessity of the family. Being the karta of the family, Hukum Singh was, therefore, competent to sell the suit property to her. The plaintiffs, therefore, cannot challenge the sale in question because the sale was for legal necessity of the family. To show the conduct of plaintiffs and Hukum Singh, he submitted that immediately after marriage on 02.06.2006, the instant suit is filed on 27.07.2006 whereas, Hukum Singh is impleaded as defendant instead of plaintiff. A bare perusal of written statement goes to show that the entire claim of the plaintiffs is accepted by defendant no.1 to 4 which goes to show that the suit was collusive and was only filed with mala-fide intention of avoiding the sale deed executed in favour of this respondent. The counsel also disputed the identity of suit property on the ground that Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 5 FA-167-2008 the land purchased by her is situated in village Bairach whereas the suit property, as per plaint allegation, is situated in village Patharra Narayan. He submits that even though specific objection in this regard was raised in written statement, the plaintiff has not amended the plaint. In other words, he submits that the suit land is different than the one purchased by her from Hukum Singh and, therefore, no decree can be passed in plaintiffs' favour. Learned counsel for the respondent further submitted that since the plaintiffs filed the suit challenging her sale deed, they were required to pay the ad-valorem court fees on the relief of declaration claimed by them and, therefore, without payment of court-fees, the present appeal is not maintainable. In support of his aforesaid submissions, he relied upon Hirabai (Dead) Through Legal Representative & Ors. Vs. Ram Niwas Bansi Lal Lakhotiya (Dead) by Legal Representative & Ors. reported (2019) 15 SCC 204, K.C. Laxmana Vs. K.C. Chandrappa Gowda & Anr. reported in (2022) 18 SCC 483, Shamsher Singh Vs. Rajinder Prashad reported in AIR 1973 SC 2384, Laxminarayan Vs. Nathulal 1983 JLJ SN 24 and Manoj Kushwah Vs. Chhotelal and Ors. reported in 2014 (3) MPLJ 521.
[10]. I have heard the learned counsel for the parties and perused the record.
[11]. Based upon the arguments advanced by learned counsel for the parties, following issues emerges in the facts of this case;
"(i)Whether the sale of the suit property by Hukum Singh, the defendant no.1, in favour of defendant no.5 is based upon legal necessity and Hukum Singh being karta of the family was competent to sell the same to defendant no.5?
(ii)Whether the distribution of the suit property in the present case is governed by Section 6 or Section 8 of the Hindu Succession Act, 1956?
(iii)Whether the plaintiffs are required to pay ad-Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM
6 FA-167-2008 volerum court fee on the relief of declaration in relation to sale deed?"
[12]. So far as the first issue regarding legal necessity is concerned, it is necessary to note that the sale deed was executed by Hukum Singh on 10.05.2006 and the same was registered on 18.05.2006 in respect of 0.40 hectares of land out of total 1.95 hectares. Soon thereafter there was marriage of Hukum Singh's daughter on 02.06.2006 which is evident from the Marriage Card available on record as Ex. D/1. The plaintiff - Akhilesh Singh (PW-1) in his statement particularly, paragraph 8, has admitted that his father, Hukum Singh, resides with him and they are having cordial relations; that the financial condition of the family was not good; that besides plaintiffs, Hukum Singh has one daughter also. Apart from marriage card (Ex. D/1), the factum of marriage of daughter of Hukum Singh is accepted in oral testimony by plaintiffs' witness Mukesh Kumar, Badli and plaintiff Akhilesh Kumar wherein, they accepted that the marriage took place in summer season/June' 2006. Thus, facts stated above establishes that in order to perform marriage of his daughter, Hukum Singh sold the suit property to defendant no.5. Admittedly, Hukum Singh, being the father, was the karta of family and was entitled to sell the property for satisfying the legal necessity of the family. The factum of legal necessity could have been well explained by Hukum Singh, however, he is not examined in Court and, therefore, the logical inference is that the sale deed was executed by Hukum Singh for satisfaction of legal necessity. The learned Trial Court has taken these facts into consideration in para 25 & 26, though a specific finding in this regard is not given. [13]. The conduct of the plaintiffs as also the defendant no.1 is also relevant and is required to be considered at this stage. As per para 18 of statement of Akhilesh Kumar, Hukum Singh was a literate person and was Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM
7 FA-167-2008 President of Singhpura Sahakari Samiti. Meaning thereby, he is capable of understanding the legal intricacies. Hukum Singh, defendant no.1, filed the common written statement alongwith defendant no.2 to 4, accepting the plaintiffs' case in toto including the plaintiffs' allegation regarding his bad habits. Hukum Singh could have been the best evidence for denying the factum of legal necessity. However, he did not appear in the witness- box. It is not the case of plaintiffs that their relations with Hukum Singh were not cordial, rather plaintiff Akhilesh Kumar has stated about his good relation with Hukum Singh in para 8 of his statement. Had the plaintiffs' claim was genuine, there was no reason for not joining Hukum Singh as plaintiff in the suit and/or not examining him in court. All these circumstances show that Hukum Singh, the defendant no.1, sold the suit property to defendant no.5 for satisfying the legal necessity and further that the instant suit is filed with mala-fide intention, in collusion with Hukum Singh, in order to avoid the sale of suit property. [14]. Thus, in the facts and circumstances of the case, I am of the considered opinion that the sale was effected by Hukum Singh in favour of defendant no.5 for legal necessity of the family for performing the marriage of his daughter. Thus, it cannot be said that the sale by Hukum Singh, karta of the family, in favour of defendant no.5 is null and void. [15]. So far as the second question is concerned, starting from Prem Narayan, the plaintiffs are admittedly the third generation in the line of succession. If the coparcenary is to be accepted, the plaintiffs are admittedly the members of the said coparcenary. The plaintiffs have relied upon the provisions of Section 6 of Act of 1956 which provides for devolution of interest in coparcenary property. Even though exact date of death of Prem Narayan is not available on record, it is not disputed by learned counsel for the parties that he expired prior to coming into force of Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 8 FA-167-2008 Hindu Succession (Amendment) Act, 2005 i.e. 09.09.2005. Thus, by virtue of sub-section 3 of Section 6 of the Hindu Succession (Amendment) Act, 2005, and also in view of the fact that the rights of a daughter in coparcenary property is not involved in this case, the provisions of Section 6 of the Act of 1956 prior to amendment is to be looked into. Section 6 before amendment read as under:
"6. Devolution of interest in coparcenary property.--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 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 coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.--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 coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."
[16]. A bare reading of Section 6 quoted above, it is evident that where the deceased has left behind him surviving female relative specified in class-I of the Schedule, the interest of deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession and not by survivorship. In other words, interest of the deceased shall be governed by Section 8 of the Act of 1956 and not by Section 6 thereof. It is an admitted factual position in this case that Prem Narayan left behind his widow, Smt. Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 9 FA-167-2008 Ramshri, who was impleaded as defendant no.4 in the suit. She expired during the pendency of this litigation. Thus, by virtue of proviso to Section 6 quoted above, the interest of parties in the property left by Prem Narayan shall be governed by Section 8 of the Act of 1956. Thus, the widow and three sons of Prem Narayan would get 1/4 th share in the property. Therefore, so long as Hukum Singh is alive, the plaintiffs cannot claim any right in the property. The judgments relied upon by plaintiffs does not deal with the situation where deceased has left behind female Class I heir and are, therefore, not applicable in the facts of the present case.
[17]. Yet another important aspect which the plaintiffs failed to plead and prove in the suit is regarding other joint family properties. It is settled in law that Hukum Singh was competent to sell his undivided share in the property. In order to establish that he sold the land in excess to his share, the plaintiffs were obliged to disclose in plaint the details of all the family properties in which Hukum Singh had his share. The plaintiffs failed to disclose these details in plaint even though in para 16 & 17 of his statement, plaintiff Ahkhilesh Kumar has accepted factum of other family properties. Therefore, on this count also, an adverse inference is required to be drawn against the plaintiff.
[18]. The learned counsel for respondent has raised a serious objection with regard to identity of the suit property inasmuch as, as per plaint averments, the suit property is situated in village Patharra Narayan while as per documents filed as Ex. P/1 to P/7, the suit property is situated in village Bairach. The defendant no.5, para 3 of her written statement, made a specific averment that she has purchased 0.40 hectare of land out of total 1.94 hectare of Khasra No.77 situated in village Bairach, Tehsil Bhander, District Datia. The plaintiff Akhilesh Kumar has accepted this discrepancy Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM 10 FA-167-2008 about village name in para 21 of his statement. Still no step was taken by them to correct the same. Thus, in absence of any pleading with regard to suit land being situated in village Bairach, the plaintiffs' claim as set up in the suit is not acceptable.
[19]. Lastly, the objection with regard to deficit court fee is to be considered. The learned Trial Court while answering issue no.2, has held that since the plaintiffs are challenging the sale deed executed by Hukum Singh in favour of defendant no.5, they are required to pay ad valorem court fees on sale consideration mentioned in sale deed. The Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. Reported in (2010) 12 SCC 11, has dealt with this issue and has held as under:
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad- valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)
(c) of the Act."Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM
11 FA-167-2008 [20]. Thus, in view of law laid down by Apex Court in the case of Surhid Singh (supra), since the plaintiffs are not party to the sale deed and also in view of the fact that they are claiming their independent right in the suit property, the finding of learned Trial Court on issue no.2 is not sustainable and is hereby set aside. It is held that the suit is properly valued by the plaintiffs.
(ASHISH SHROTI) JUDGE Vpn/-
Signature Not Verified Signed by: VIPIN KUMAR AGRAHARI Signing time: 4/9/2025 2:44:49 PM