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IN THE HIGH COURT OF JUDICATURE AT PATNA
RUDRA PRAKASH MISHRA, J.
First Appeal No. 667 of 1978
(29.10.2024)
Umesh Singh & Ors. ... Appellants
vs.
Kapildeo Singh & Ors. ... Respondents
Hindu Law – Partition – Rights of female – The principles in regard to rights of female are, (i) before coming into force of Hindu Succession Act, the share allotted to a female was not her absolute interest or stridhana but reverted back and becomes part of the share out of which it came except where it was given to her by way of an absolute gift – But now by virtue of Section 14(1) of the Hindu Succession Act, it is her absolute property – (ii) before partition by metes and bounds is made and property is de facto divided or severance of status the interest of female does not become absolute owner under Section 14 of the Hindu Succession Act – Their right arises only when partition is actually affected – (iii) Similarly, under Section 6 of the Hindu Succession Act, the mother and widow take a share as class-I heirs of the deceased Hindu dying intestate and leaving undivided coparcenary interest – Both these provisions have not affected their right to have a share in the coparcenary property on partition – It has been held by the Hon'ble Supreme Court that, "the right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition" – The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute – A coparcener enjoys the right to seek severance of status – Under Section 6(1) and 6(2), the rights of a daughter are pari passu with a son – In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to a equal share – The right of the wife of a coparcener to claim her right in property is in no way taken away – In the present case, the court below has decided the issue of previous partition in four of plaintiffs-Respondents, whereas, has decided another issue that Tilo Kumari (mother of Defendant-4) did not relinquish her right, title or interest in joint family property in lieu of maintenance and upheld the sale deeds executed by Tilo Kumari and at the same time has also decided that there was unity of title and possession and existence of joint family plaintiffs and defendant No. 1 in respect of suit properties – However, even if it can be presumed that there was no partition by metes and bounds, under these circumstances, both the findings cannot go together and it actual partition takes place as per law between the sons of Kuldeep Singh and widow mother of defendant No. 4, each would be entitled for 1/4th share as there was a partition suit filed by the plaintiffs – The court below committed by allotting 2/3rd share to plaintiffs and 1/3rd share to defendants-appellants – Consequently findings recorded by the court below is not in accordance with law and both the issues decided in favour of the defendants-appellants – Impugned judgment and decree set aside – Appeal allowed. (Paras 28, 31, 33 and 34)
AIR 2003 SC 3800; (2008) 1 SCC 465; 1999 (2) PLJR 258 – Referred.
Kalyani Vs. Narayanan, AIR 1980 SC 1173; Vineeta Sharma Vs. Rakesh Sharma, 2020 (5) BLJ 294 (SC) : (2020) 9 SCC 1; Prasanta Kumar Sahoo Vs. Charulata Sahu, 2023 (4) BLJ 43 (SC) : (2023) 9 SCC 641 – Relied.
Rudra Prakash Mishra, J.—The present appeal has been filed against the judgment dated 24.06.1978 and decree dated 04.07.1978 passed by 2nd Additional Sub Judge, Monghyr in Title Suit No. 116 of 1973/3 of 1977 by which the learned Court below has been decreed the suit in favour of the plaintiffs.
2. For better appreciation of case, the parties shall be referred according to their status before the lower Court.
3. The case of the plaintiffs (respondents herein) is that the plaintiffs and defendants 1st parties are joint family governed by the Mitakshara School of Hindu Law and are related to each others as Shown in the Genealogical Table given below:—
| Kuldip Singh Died 1947 | |||
| Narsingh Singh (Died 1940) | Mathura Singh (Defendant 1) | Sarjug Singh (Plaintif 1) | Ambika Singh |
| Wife-Tilo Kumari | Wife -Dasho Devi (Defendant 2) | Son-Kapildeo (Plaintif 2) | Son-Kapildeo (Plaintif 4) |
| Daughter- Chandra kumari (Defendant 4) | Daughter-Sunita Devi (Defendant 3) | Son-Arjun Singh (Plaintif 3) |
|
The common ancestor Kuldip Singh (father) owned and possessed landed properties mentioned in Schedule "A" of the plaint. In the life time of Kuldip Singh, the eldest son Narsingh Singh died in the year 1940 leaving behind his widow Tilo Kumari and a minor daughter Chanda Kumari. After death of Narsingh Singh, Kuldip Singh along with his three surviving sons, namely, Ambika Singh, Mathura Singh (Defendant No. 1) and Saryug Singh (plaintiff No. 1) came in joint possession of the properties and the widow Tilo Kumari relinquished her right in the joint property in lieu of maintenance as also maintenance of her daughter and was allowed 25 maunds of grains annually for her maintenance and for the maintenance of her minor daughter, namely, Chanda Kumari (defendant No. 4). Kuldip Singh died in the year 1948 and after death of Kuldip Singh, Mathura Singh became the Karta of the joint family of plaintiffs and defendants and thereafter, Chanda Kumari, daughter of Narsingh Singh and Tilo Kumari was married in the year 1949 with the joint family fund. Tilo Kumari never came in possession of any portion of the joint family property. It is further case of the plaintiffs that Tilo Kumari, without any legal necessity, sold away portions of joint family property through three registered sale deeds in favour of Mathura Singh (defendant no.-1), Desho Devi (defendant no.-2, wife of Mathura Singh) and Sunita Devi, (defendant no.-3, Daughter-in- Law of Mathura Singh) which are described in Schedules (B, C and D' to the plaint, being, sale deed dated 26.02.1969 and 11.09.1972, respectively and thereafter, Tilo Kumari died in the year, 1972 (on 25.10.1972). It is further case of the plaintiffs that the Defendant No. 1 to 3 and defendant No. 4 never came in possession of the properties specified in Schedule B, C and D of the plaint. Due to dishonest intention and misconduct of Mathura Singh (Defendant no.-1) were causing difficulties in the joint management of the suit properties, hence the plaintiffs filed a suit bearing Title Suit No.116 of 1973 in the learned Court of Sub Judge-II, Munger for partition of 2/3rd share of the plaintiffs in suit property described in schedule -A to the plaint and for declaration that the sale deeds dated 26.02.1969 and 11.09.1972 executed by Tilo Kumari, respectively in favour of Mathura Singh (Defendant No.-1), Desho Kumari (Defendant no.-2) and Sunita Devi (Defendant no.-3) in respect of landed properties described in Schedules 'B, and D' respectively, to the plaint are not binding on the plaintiffs. Further in the year 1978, the plaintiffs withdrew the challenge on the validity of the three sale deeds in favour of the appellants and the converted the suit into a suit for partition.
4. The case of defendants-appellants that Mathura Singh, defendant no.1, Desho Devi, defendant no.2 and Sunita Devi, Defendant no.3, have appeared and contested the suit. A joint written statement has been filed on their behalf denying the
The main legal point established in the judgment is that unless prior partition is established, there shall be a presumption that the property is joint family property, and a family arrangement in th....
A joint Hindu family property remains joint unless proven otherwise; the burden of proof lies on the party claiming separate ownership, requiring credible evidence.
A joint Hindu family's property remains joint unless the asserting party proves separation or prior partition; the burden of proof lies with the party claiming such separation.
There can be partial partition between coparceners of a Hindu joint family – It is always open to members of joint Hindu family to divide some properties of family and to keep remaining undivided.
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