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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K Agrawal, J.
BHAGELA SAHU - Appellant
Versus
RAJU SAHU - Respondent
Second Appeal No. 266 of 2010
Decided On : 27-02-2020
Hindu Succession Act, 1956 - Section 8 and 15 – Civil procedure code,1908 - Section 100 - Partition over the suit land - Settled legal position - It is case of plaintiff that suit property mentioned in Schedule A appended with plaint fell in share of - Defendant No-1 in family partition between his brother and his father and property mentioned in Schedule B appended with plaint was purchased out of income of property shown in Schedule A of plaint – Plaintiff filed suit for declaration of title partition separate possession and mesne profit stating inter alia that he is son of out of his marriage with first wife whereas defendant No-2 are son and daughters of out of his marriage with second wife - Defendant No-1 filed written statement and disputed paternity of plaintiff stating inter alia that plaintiff is not his son and therefore not entitled for partition over suit land that too during his lifetime – Held, They do not possess any antecedent title to such property - Right to such property accrues to them only on their parents dying intestate - It is death of parents and not birth of child which confers right on such property - In respect of such property both legitimate and illegitimate child succeed in accordance with provisions of Section 8 and 15 of Succession Act if parents die intestate - It is only after event i-e- death suit for partition could be filed- Therefore it follows that no suit for partition could be filed against parents during their life time in respect of separate self acquired property of parents - Illegitimate son is not a co-parcener - He has no right in coparcenary property - However he has a right in share of father in co-parcenary property - That right he can exercise only on his father dying intestate - Appeal dismissed
Certainly. Based on the provided legal document, here are the key points:
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 (!) .
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 (!) .
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 (!) .
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 (!) (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) .
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 (!) .
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 (!) .
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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 that he is son of Bhagela Sahu out of his marriage with first wife Kumari Bai, whereas defendant No.2, Chandrakali and Dhaneshwari Bai are son and daughters of Bhagela Sahu out of his marriage with second wife Kunti Bai. Defendant No.1 Bhagela Sahu filed written statement and disputed the paternity of the plaintiff stating inter alia that the plaintiff is not his son and therefore not entitled for partition over the suit land, that too during his lifetime.
3. The trial Court after appreciating oral and documentary evidence available on record, dismissed the suit holding that the plaintiff is not son of defendant No.1, but in appeal preferred by the plaintiff before the first appellate Court, the first appellate Court held that the plaintiff is the legitimate son of Bhagela Sahu - defendant No.1 out of his marriage with Kumari Bai and defendant No.2, Chandrakali & Dhaneshwari Bai are son & daughters of Bhagela Sahu out of his marriage with Kunti Bai - second wife, during the subsistence of marriage with Kumari Bai (without chod chutti) and accordingly held that the plaintiff is entitled for half share in the suit property against which this second appeal under Section 100 of the CPC has been preferred by defendants No.1 & 2 in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment.
4. Mr. Pushpendra Kumar Patel, learned counsel appearing for the appellants herein / defendants No.1 & 2, wold submit that Chandrakali and Dhaneshwari Bai - two daughters of Bhagela ought to have been impleaded as party defendants in the suit, as such, the suit is bad for non-joinder of necessary party. He would further submit that since defendant No.1 Bhagela is still alive, therefore, the plaintiff (son) could not have brought suit for partition during the lifetime of his father / defendant No.1. As such, the suit deserves to be dismissed on both the counts.
5. Per contra, Mr. Ratan Pusty and Mr. Shobhit Koshta, learned amicus curiae, would submit that the position with regard to filing of suit by son has been settled by the Supreme Court in the matter of Puttrangamma and others v. M.S. Ranganna and others, 1968 AIR(SC) 1018 as with regard to the joint family property / coparcenary property, son is at liberty to file suit against his father during the lifetime of his father, as such, no exception can be taken to the suit which has been filed by the son - plaintiff against his father - defendant No.1. They would further submit that since daughters of Bhagela are illegitimate daughters and the suit property is the ancestral property in the hands of Bhagela, therefore, daughters would not be necessary party in the light of the decision of the M.P. High Court in the matter of Smt. Gomati Devi v. Ram Prasad Prabh
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