Interpretation of succession rights in joint Hindu family property under the Hindu Succession Act.

Vinod K. Sharma, J. (Oral) - The present Regular Second Appeal has been filed against the judgments and decrees passed by the learned Courts below vide which the suit filed by the plaintiff-appellant for declaration to the effect that he was owner in possession to the extent of 5/12 share in the suit land which previously existed in the name of his father Phul Chand, was dismissed. He also challenged mutation No. 405 dated 29th of August, 1973, vide which 1/4th share in the land detailed in the heading of the plaint was mutated in his favour. The mutation was sanctioned on the basis of succession on the death of Phul Chand. The plaintiff-appellant claimed that the suit land described in the heading of the plaint was a coparcenary property of the plaintiff, defendant No. 3 and their father Phul Chand, who all constituted a Joint Hindu Family. Phul Chand left behind the following legal heirs :-

1. Ishwar Dayal (Son) Plaintiff

2. Smt. Mamo Devi (Daughter) Defendant

3. Smt. Har Piari (Widow) -do-

4. Mam Chand (Son) -do-

2. The plaintiff-appellant set up his case on the plea that the suit land existed in the name of Phul Chand on account of the fact that he was a Karta of the family and that the share which was open to succession on the death of Phul Chand, was only 1/3th share in the whole land with a result that on his death, mutation in respect of 5/12th share should have been sanctioned in plaintiffs name and not of 1/4th share as was done in mutation No. 405. It was further claimed that the said mutation was ineffective against his rights.

3. The suit was contested by the defendants. The relationship between the parties was not disputed. It was claimed that the suit land was not a coparcenary property, as Phul Chand and his sons had separated during the life time of Phul Chand and, therefore, the impugned mutation was rightly sanctioned with the consent of the parties. It was claimed that the plaintiff himself was working as Patwari and the suit was not maintainable in the present form.

4. The trial Court dismissed the suit by holding that there was a partition between the family members and, therefore, the plaintiff did not form a Joint Hindu Family with defendant No. 3 and Phul Chand, deceased, as alleged. The learned trial Court also held that the suit property was not a coparcenary property as claimed and on issue No. 1 it was held that the plaintiff had already sold his 1/4th share in the suit property and, therefore, he was not in possession of any property. So, the suit as framed was not maintainable.

5. The plaintiff-appellant filed an appeal before the learned Additional District Judge Jind, who came to the conclusion that though plea of the plaintiff that during the life time of Phul Chand only house was partitioned and it has to be treated a case of partial partition which was permissible under the Hindu law is permissible under law, but the same could not be accepted. It was held that the suit property continued to be a coparcenary property in spite of separate possession. However, reliance was placed on the judgment of the Honble Supreme Court in the case of Bhagwati Parshad v. Dulhin Rameshwari, 1951 SCR 603 to non-suit the plaintiff-appellant as it was admitted case that the plaintiff had not set up the case in the suit alleging therein that partial partition had taken place between the parties and raised the plea that the suit land had remained joint.

6. The learned Appellate Court took note of the fact that the evidence on record conclusively proved that the parties were separate in mess and, therefore, cannot be said that they constituted a Joint Hindu Family. The plea of the appellant that succession was to be governed by Section 6 was rightly not accepted in view of explanation to section 6 of the Hindu Succession Act, as the parties had, admittedly, separated during the life time of Phul Chand. In that situation, learned Courts below were right in coming to the conclusion that the land was