Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 444

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
Shailndra Kumar Jain and Others – Appellants
Versus
Maya Prakash Jain and Others – Respondents
Civil Appeal No. 3587 of 2019, Special Leave Petition (Civil) No. 3490 of 2019
Decided On : 09-04-2019

Advocates Appeared:
For Appellant(s) : Mr. Dinesh K. Garg, Adv. Mr. Abhishek Garg, Adv Mr. Dhananjay Garg, AOR Mr. Deepak Mishra, Adv.
For Respondent(s): Mr. Jitendra Mohan Sharma, Sr. Adv. Mr. Ajit Sharma, AOR Mr. Sandeep Singh, Adv. Mr. Adnan Siddiqui, Adv. Mr.Ashutosh Senger, Adv. Mr. Pranshu Kaushal, Adv. Mr. Sudhir Kumar Gupta, AOR

IMPORTANT POINT
In case of parents dying intestate, the daughters are entitled to a share in the property. Even if there is a Will daughters are necessary party in the proceedings to prove the will.

Headnote:Code of Civil procedure, 1908 – Order 1 Rule 10 – Suit filed in 1966 for declaration of shares in pursuance of family partition – As per prevailing law daughters not entitled to partition – appellant did not and could not challenge the decree in suit filed in 1966 – However on the appellant’s parents, having a share by decree in 1966, dying intestate the daughters became entitled to a share in the property – Further, respondents claiming their right on basis of Wills of the parents exclusively in favour of sons – If the wills are not proved the daughters will have a share – Held, in any case appellant was a necessary party – Ought to be impleaded. (Para 12, 13)
       (1977) 2 SCC 501 – Relied upon
       Facts of the case:
       Suit No. 92 of 1966 filed for declaration of share of properties after partition was decreed on compromise.
       Defendant No. 5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit No. 464 of 2006 in the Court of Civil Judge (Senior Division), Meerut, submitting inter-alia that after the aforesaid decree dated 23.02.1966, there was a further family settlement arrived at between all sons of said Amba Prasad Jain on 05.11.2005 regarding division of house and other joint properties. It was claimed that the parties were bound by said settlement dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was exclusive owner of certain properties mentioned in the schedule to the plaint in said suit of 2006.
       An application was preferred by original Defendant No. 8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants in aforesaid Suit No. 464 of 2006 which was dismissed by the trial court.
       The appellants preferred Civil Revision in the High Court, which was dismissed.
       Finding of the Court:
       Appellant was a necessary party to the suit and ought to be impleaded.
       Result: Appeal allowed.

JUDGMENT :

UDAY UMESH LALIT, J.

1. Leave granted.

2. This appeal challenges the correctness of the decision dated 19.07.2018 passed by the High Court of Judicature of Allahabad in Civil Revision No. 156 of 2016.

3. One Vinay Prakash Jain filed Suit No. 92 of 1966 (“1966 Suit” for short) in the Court of Sub-Judge, First Class, Delhi seeking declaration that certain properties had fallen to his share after a partition between his father Amba Prasad, his mother Smt. Devi Jain and three brothers, all of whom were arrayed as Defendant Nos. 1 to 5. In the suit four sisters, including Smt Srikanta Jain were also arrayed as Defendant Nos. 6 to 9.

4. An order was passed by the trial court on 23.02.1966 in 1966 Suit recording a compromise amongst the parties pursuant to which the suit was decreed. Relevant portion of the order was as under:

“The plaintiff has prayed that a declaration be made that he is the owner of the properties in the plaint of the suit (illegible). The said properties had fallen in his share in (illegible) between the plaintiff and defendant Nos. 1 to 5. The defendants have today through their counsel Shri Vijay Kishan, Advocate filed written statement admitting the claim of the plaintiff. The counsel for the defendants has also made a statement in the Court that decree be passed as prayed for.
In the result, I pass a decree for declaration to the effect that the plaintiff is the owner and in possession of the properties mentioned in clause (a) of Para No. 11 of the plaint. The parties be bear their own costs of the suit.
Pronounced.”

5. Defendant No. 5 in 1966 Suit i.e. Maya Prakash thereafter filed Suit No. 464 of 2006 in the Court of Civil Judge (Senior Division), Meerut, submitting inter-alia that after the aforesaid decree dated 23.02.1966, there was a further family settlement arrived at between all sons of said Amba Prasad Jain on 05.11.2005 regarding division of house and other joint properties. This settlement was said to have been arrived at in the presence of Smt. Chandrakanta Jain, Shri D.P. Jain, Smt. Padamkanta Jain and Shri Akhilesh Jain. It was claimed that the parties were bound by said settlement dated 05.11.2005 and that in pursuance thereof said Maya Prakash Jain was exclusive owner of certain properties mentioned in the schedule to the plaint in said suit of 2006.

6. An application Ex.92 Ka was preferred by original Defendant No. 8 in 1966 Suit i.e. Srikanta Jain seeking her impleadment as one of the defendants in aforesaid Suit No. 464 of 2006. It was submitted that after the death of her parents i.e. Amba Prasad Jain, and Smt. Devi Jain, the applicant was entitled to the property which was left behind by the parents and the applicant being a necessary party she ought to be impleaded as one of the defendants in Suit No. 464 of 2006. During the pendency of the application, Smt. Srikanta Jain expired and the appellants, i.e. her legal heirs were substituted in her place.

7. The application was dismissed by the trial court vide order dated 10.03.2016. It was observed that the applicant Smt. Srikanta Jain had knowledge of 1966 Suit but no steps were taken to appeal against the decree passed on the basis of oral family partition between her parents and brothers and as such her application was required to be dismissed.

8. The appellants being aggrieved, preferred Civil Revision No. 156 of 2016 in the High Court, which revision was dismissed by the High Court vide order dated 19.07.2018. It was observed as under:

“Since, as noticed above, the suit where from this revision arises basically seeks implementation of an earlier decree in Suit No. 92 of 1966, which determined the shares of the parties thereto, upon acceptance of an alleged oral partition between them, and since admittedly the parties to the suit are only those whose shares are to be separated, the Court below has committed no illegality in rejecting the impleadment application, on a finding that revisionist are not necessary parties In the proceedings.”

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2019 Supreme(SC) 444

SUPREME COURT OF INDIAUDAY UMESH LALIT, INDU MALHOTRA, JJ.Shailndra Kumar Jain and Others – AppellantsVersusMaya Prakash Jain and Others – RespondentsCivil Appeal No. 3587 of 2019, Special Leave Petition (Civil) No. 3490 of 2019Decided On : 09-04-2019

IMPORTANT POINTIn case of parents dying intestate, the daughters are entitled to a share in the property. Even if there is a Will daughters are necessary party in the proceedings to prove the will.

Cases Referred (1)

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
Shailndra Kumar Jain and Others – Appellants
Versus
Maya Prakash Jain and Others – Respondents
Civil Appeal No. 3587 of 2019, Special Leave Petition (Civil) No. 3490 of 2019
Decided On : 09-04-2019

IMPORTANT POINT
In case of parents dying intestate, the daughters are entitled to a share in the property. Even if there is a Will daughters are necessary party in the proceedings to prove the will.