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2020 Supreme(Chh) 347
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Hiraman (dead) Through Legal Representatives & Ors. - Appellant
Versus
Jyoti Prakash, Aged 50 Years & Ors. - Respondent
Second Appeal No.356 of 2008
Decided On : 20-02-2020
Mr. Siddharth Dubey, Advocate, for the Appellant; Mr. Ram Kumar Tiwari, Advocate., Mr. Ravi Kumar Bhagat, Deputy Government Advocate, for the Respondent
The main legal point established in the judgment is the impermissibility of an oral will executed by a Hindu and the equal entitlement of brother and sister as Class II heirs under the Hindu Succession Act.
Headnote:
Partition - Hindu Succession Act - Section 6, Section 15, Section 11, Indian Succession Act - Section 57, Section 63 - The court discussed the applicability of the Hindu Succession Act and Indian Succession Act in determining the entitlement to ancestral property, the validity of oral wills, and the principles of partition among coparceners. The court held that an oral will executed by a Hindu is impermissible in law and must comply with the requirements of Section 63 of the Indian Succession Act. It also affirmed that both brother and sister are Class II heirs and would share the property equally, rejecting the argument that a brother should take more share than sisters. The court further determined the division of property among coparceners in accordance with the Hindu Succession Act, modifying the judgment of the first appellate Court.
Fact of the Case:
The suit involved a dispute over the partition of ancestral property among the plaintiff and the defendants, with the plaintiff claiming entitlement based on an alleged oral will and the application of Hindu Succession Act provisions.
Finding of the Court:
The court found that the oral will set up by the plaintiff was rightly declined as it did not comply with the requirements of the Indian Succession Act. It also held that both brother and sister are Class II heirs and would share the property equally, and determined the division of property among coparceners in accordance with the Hindu Succession Act, modifying the judgment of the first appellate Court.
Issues: The issues involved the validity of the oral will, entitlement to ancestral property, and the principles of partition among coparceners.
Ratio Decidendi: The court's decision was based on the impermissibility of an oral will executed by a Hindu, the equal entitlement of brother and sister as Class II heirs, and the principles of partition among coparceners as per the Hindu Succession Act.
Final Decision: The appeal was allowed in part by modifying the judgment of the first appellate Court and the decree was drawn-up accordingly.
JUDGMENT
1. This appeal preferred by the plaintiff/appellant herein was admitted for final hearing on the following three substantial questions of law: -
''i. Whether learned first appellate Court was justified in reversing the judgment and decree passed by the trial Court declaring the land bearing Khasra No.226 area 0.486 hectare and Khasra No.975 area 0.575 hectare total area 1.461 hectare is liable to be partitioned between the plaintiff and the defendants and holding that the same fell in the share of the defendants in partition amongst the parties took place way back in 25 to 30 years ?
ii. Whether both the Court below were justified in holding that the land Bearing Khasra No.1143 area 0.643 hectare is jointly held by the plaintiff and the defendants after death of Dukhni Bai and passing the decree for partition between the plaintiff and defendants ignoring the plea of ouster taken by the plaintiff ?
iii. Whether the finding regarding partition between the parties way back in 25 to 30 years is perverse ?''
(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the plaint before the trial Court.)
2. The following genealogical tree would demonstrate the relationship amongst the parties: -
3. The suit property was originally held by Baldeo Dhimar. He had two sons namely Bisram and Bir Singh. Bisram and his wife Dukhani Bai died issue-less. Dukhani Bai died in the year 1978 after the death of her husband Bisram. However, Bir Singh had two sons namely Hiraman the plaintiff herein and Jyoti Prakash (defendant No.1) and three daughters namely Firan (defendant No.2), Bundela (defendant No.3) and Jhunni Bai (defendant No.4). It is the case of the plaintiff that since Bisram and Dukhani Bai died issue-less and Dukhani Bai died subsequent in time, he inherited the property of Bisram after death of Dukhani Bai, by way of oral will allegedly executed by Dukhani Bai in his favour.
Further case of the plaintiff is that there is no partition took place between them in the lifetime of Bir Singh, therefore, they are entitled for the property as per the Explanations appended to Section 6 of the Hindu Succession Act, 1956, as the said property was the ancestral property in the hands of his father Bir Singh and therefore the suit be decreed accordingly.
4. The defendants setup the plea that in the lifetime of Baldeo Dhimar, the property has been divided between Bisram and Bir Singh and Bisram died issue-less and so far as the property of Bir Singh is concerned, the plaintiff has sold his part of property given to him on partition vide Ex.D-1 i.e. Khasra No.413, area 0.024 hectare and Khasra No.914, area 0.445 hectare and he also made counter-claim with regard to the property of Bir Singh namely Khasra Nos.266, 975, 413 & 914, area 0.486 hectare, 0.575 hectare, 0.024 hectare and 0.445 hectare, respectively, as such, the plaintiffs suit is liable to be dismissed.
5. The trial Court upon appreciation of oral and documentary evidence on record, held that the suit property was the joint family property of parties, so far as the property of Bisram is concerned, the plaintiff and defendants No.1 to 4, both are entitled for 1/5 share each and also entitled for the property left by Bir Singh, however, appeals were preferred against the judgment & decree of the trial Court by both the parties and the appeal preferred by the plaintiff was dismissed, whereas the appeal preferred by the defendants was partly allowed and it was held that so far as the property left by Bisram and Dukhani is concerned, the plaintiff and defendants No.1 to 4, both are entitled for 1/5 share each, whereas only defendants No.1 to 4 will be entitled for the property left by Bir Singh and the plaintiff is not entitled in the property of Bir Singh, as partition has earlier been taken place and the plaintiff has sold his share against which this second appeal has been preferred by the plaintiff in which substantial questio
