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2020 Supreme(Chh) 192

SANJAY K.AGRAWAL
BHAGELA SAHU – Appellant
Versus
RAJU SAHU – Respondent


Advocates Appeared:
Pushpendra Kumar Patel, Advocate, Anshuman Rabra, Advocate, Ratan Pusty, Advocate, Shobhit Koshta, Advocate

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The suit property mentioned in Schedule A was part of a family partition and fell into the share of the defendant No.1, Bhagela Sahu, while Schedule B was purchased using income from Schedule A property (!) .

  2. The plaintiff claims to be the son of Bhagela Sahu from his first marriage with Kumari Bai, and asserts his right to declare ownership, partition, and possession of the property. The defendant No.1 disputes paternity, claiming the plaintiff is not his son and thus not entitled to share during his lifetime (!) .

  3. The first appellate court found that the plaintiff is the legitimate son of Bhagela Sahu from his first marriage, and that the daughters of Bhagela Sahu from his second marriage are illegitimate and not entitled to a share in the ancestral property. Consequently, the court held the plaintiff is entitled to a half share in the property (!) .

  4. The legal position indicates that a son can file a suit for partition during the lifetime of the father if the property is joint family or ancestral property, and that a son’s right to seek partition arises from his status as a coparcener, which can be established through a clear declaration of separation or by law during the father's lifetime (!) (!) (!) .

  5. The law clarifies that illegitimate children do not have a right in coparcenary or ancestral property during the lifetime of the parent, but they can succeed to the share of the parent only upon the parent's death if the parent dies intestate. They do not have a right to claim partition of self-acquired or separate property of the parent during the parent's lifetime (!) (!) .

  6. The legal doctrine confirms that a member of a joint Hindu family can seek partition independently during the lifetime of the other members, including the father, without requiring consent, and that the right to partition is an incident of joint ownership that arises on the death of the parents or upon a valid declaration of separation (!) (!) .

  7. The suit filed by the plaintiff was for declaration of his share and partition of ancestral property, which is permissible during the lifetime of the father if the property is joint family or ancestral property. The suit was not barred solely because the father was alive at the time of filing (!) (!) .

  8. The suit was dismissed on the ground that the plaintiff was not the son of the defendant No.1, but this finding was reversed by the appellate court, and the finding of paternity has become final (!) .

  9. The non-joinder of the daughters of the defendant No.1 from his second marriage was considered not necessary for the purpose of the suit, as they are illegitimate and not entitled to a share in the ancestral property under the relevant law (!) .

  10. The appeal was ultimately dismissed, affirming the legal position that a son can seek partition during the father's lifetime only in respect of joint or ancestral property, and that illegitimate children do not have such rights during the lifetime of the parent (!) .

Please let me know if you need further analysis or assistance.


JUDGMENT

Sanjay K Agrawal, J. - This second appeal preferred under Section 100 of the CPC by the appellants herein / defendants No.1 & 2 was admitted for hearing by formulating the following substantial questions of law: -

"(1) Whether the suit suffered from non-joinder of necessary parties as the daughters of defendant No.1 were not arrayed in the suit?

(2) Whether a decree for 1/2 share in the suit property can be passed in favour of the appellants in respect of the ancestral property for which the suit has been preferred during the lifetime of father?"

[For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.]

2. It is the case of the plaintiff that the suit property mentioned in Schedule A appended with the plaint fell in the share of Bhagela Sahu - defendant No.1 in the family partition between his brother and his father and the property mentioned in Schedule B appended with the plaint was purchased out of the income of the property shown in Schedule A of the plaint. The plaintiff filed suit for declaration of title, partition, separate possession and mesne profit stating inter alia th

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