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2024 Supreme(Jhk) 166
IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA, J.
T. Shailja @ T. Shailza W/o T. Saishankar Rao – Appellant
Versus
B. Sarojani Wd/o Late B. Madhav Rao – Respondent
F.A. No. 261 of 2019
Decided On : 05-03-2024
Advocate Appeared:
For the Appellant : Dilip Kr. Karmakar.
For the Respondents: Prachi Pradipti, Ranjan Kumar Tiwary.
IMPORTANT POINT
The court established that under the Hindu Succession Act, 1956, all Class I heirs of a deceased male Hindu are entitled to equal shares in the property, and the principle of joint possession applies even if co-owners reside separately.
Headnote:
Hindu Law - Partition Suit - Hindu Succession Act, 1956 - Section 8 - The court interpreted Section 8 of the Hindu Succession Act, 1956, which governs the devolution of property upon the heirs of a male Hindu dying intestate. The court emphasized that the property of the deceased, Bollu Nar Singha Rao, devolved equally among his Class I heirs, which include his daughters and adopted son. The court found that the plaintiff and defendants were co-owners of the property, and the absence of prior partition did not negate their rights to claim shares. The court's decision was influenced by the principle that possession of one co-owner is deemed possession for all, leading to the conclusion that the plaintiff was entitled to a 1/3rd share in the property.
Fact of the Case:
B. Sarojani filed a partition suit for a 1/3rd share in a property inherited from their common ancestor, Bollu Nar Singha Rao, who died intestate in 1978. The appellant, B. Mohan Rao, contested the suit, claiming exclusive possession and construction of the property, while the plaintiff asserted joint possession and entitlement to a share.
Finding of the Court:
The trial court found that the plaintiff and defendants were co-owners of the property, having equal rights as Class I heirs under the Hindu Succession Act. The court ruled in favor of the plaintiff, confirming her entitlement to a 1/3rd share and ordering partition.
Issues: 1. Is the suit maintainable? 2. Does the plaintiff have a valid cause of action? 3. Is the suit barred by limitation? 4. Is the suit barred by estoppel, waiver, or acquiescence? 5. Is the suit bad for non-joinder or mis-joinder of parties? 6. Is there unity of title and joint possession? 7. Is the plaintiff entitled to a preliminary decree for partition?
Ratio Decidendi: The court held that the possession of one co-owner is possession for all, and the absence of prior partition does not negate the right to claim a share. The court emphasized that all Class I heirs are entitled to equal shares in the property left by the deceased, regardless of their current living arrangements.
Final Decision: The appeal was dismissed, upholding the trial court's decree that the plaintiff is entitled to a 1/3rd share in the property, with costs awarded against the appellant.
JUDGMENT :
PRADEEP KUMAR SRIVASTAVA, J.
1. During the pendency of this appeal the sole appellant B. Mohan Rao has been died on 04.12.2020 and his legal heirs were substituted vide order dated 12.10.2022 through I.A. No. 7141 of 2021.
2. Present appeal is preferred by the Appellant/defendant no. 1 for setting aside the judgment dated 29.05.2019 (decree signed on 10.06.2019) passed by Sri Kumar Pawan, the learned Civil Judge (Senior Division)-I, Jamshedpur, in Title Partition Suit No. 155 of 2015, whereby and whereunder the suit filed by the plaintiff/ respondent has been decreed in the favour of plaintiff.
3. Factual matrix giving rise to this appeal is that one B. Sarojani instituted suit for partition of the suit property claiming to carve out a separate Takhta in respect of 1/3rd share in the suit scheduled property i.e. double storied pucca house property consisting of 12 rooms, with verandah on both sides, 5 kitchen, bathrooms, latrines, standing within plot no. 1049 measuring an area 0.06 acres situated at Mouza Kitadih, Thana No. 1167, P.S. Jugsalai, Jamshedpur, District East Singhbhum.
4. It is alleged that both parties are Hindus and governed by Hindu Law in the matter of inheritance and succession. The suit property belong to and possessed by one common ancestor Bollu Nar Singha Rao who died in the year 1978 leaving behind him two daughters, namely, B. Sarojani (Plaintiff) and Kaligatla Chinna (mother of the defendant no. 2) and one adopted son namely, B. Mohan Rao (defendant no. 1) as his legal heirs and successors and they came into joint possession over the suit properties.
5. It is further alleged that Kaligatla China who was married with Kaligatal Satya Narayana also died while suit property was in joint possession with the plaintiff and defendant no. 1 leaving behind their only daughter V. Laxmi who is defendant no. 2 in this suit. As such the suit property has been coming in joint possession and enjoyment of both parties and there has been no previous partition by mets and bounds amongst them. Since about two months various disputes and differences have cropped up between the parties hence plaintiff is feeling inconvenience to the joint possession and enjoyment of the suit property. Hence, she asked the defendants for amicable partition of the suit property by mets and bounds on 13.10.2015 but they declined. It is alleged that the value of suit property is about Rs. 54,00,000/- for which fixed court fees has been paid. The suit property is situated within the jurisdiction of the court. Accordingly, she is entitled for the relief claimed.
6. Upon service of summons defendant no. 1 B. Mohan Rao/ appellant appeared and contested the suit by filing a written statement raising objection about maintainability of the present suit with further plea that no cause of actions for the suit has ever arised in favour of the appellant and the suit is barred by law of limitation and also barred by principles of estoppel, weaiver and acquiescence as well as suit is liable to be dismissed due to non-joinder and mis-joinder of parties. The special plea of the defendant is that B. Nar Singha Rao died leaving behind his two daughters, namely, B Sarojani-plaintiff and Kaligatla Chinna and one adopted son, namely, B Mohan Rao/defendant no. 1. It is further contested that after death of Bollu Nar Singha Rao his both daughters, plaintiff and defendant no. 2 were residing at their matrimonial home after marriage. The suit property has never been in joint possession and enjoyment of both the parties of the suit and the same is being possessed by the answering defendant himself exclusively after the death of his father. It is further stated that the said Bollu Nar Singha Rao has purchased the suit property during his lifetime and the entire structure over the land has been constructed by the defendant no. 1 from his own earning and no other members of his family has paid a single paisa for the construction of rooms. Accordingly, they are not ent
