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2010 Supreme(MP) 260
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Sanjay Yadav, J.
Basant Kumar and Ors.
Vs.
Smt. Premwatibai and Ors.
M.A. No. 4727/2009
Decided On: 25.03.2010
The main legal point established in the judgment is the application of the principle of res judicata and the interpretation of the Hindu Succession Act, 1956, specifically Sections 6, 8, 9, and 10, in determining the entitlement to a share in the partition of property.
Headnote:
res judicata - Property Partition - Hindu Succession Act, 1956, Sections 6, 8, 9, 10 - The court discussed the legal provisions of the Hindu Succession Act, 1956, specifically Sections 6, 8, 9, and 10, and their implications on the partition of property. The court highlighted the limitations implicit in the Act and the devolution of interest in coparcenary property, emphasizing the relevance of these provisions in determining the entitlement of the daughters to a share in the property.
Fact of the Case:
The suit arose from a dispute over the partition of property belonging to Pyarelal. The trial court dismissed the suit on the ground of res judicata, but the lower appellate court set aside the judgment and remitted the suit for retrial. The appellant challenged this decision, arguing that no cause for trial existed due to the previous partition of the property.
Finding of the Court:
The court found that the lower appellate court had overstepped its powers and set aside the order, restoring the judgment decree of the trial court.
Issues: The main issue was whether the lower appellate court was justified in setting aside the trial court's judgment on the ground of res judicata and remitting the suit for retrial.
Ratio Decidendi: The court held that the lower appellate court had overstepped its powers under Order 41 Rule 23 and 23A of the Code of Civil Procedure, and therefore set aside the order.
Final Decision: The appeal was allowed, and the order dated 30.9.2009 was set aside, restoring the judgment decree dated 19.7.2007 passed in Civil Suit No. 14 A /2007.
Sanjay Yadav, J.
1. Appellant/Defendant Nos. 2 to 4 herein this appeal calls in question the legality of order dated 30.9.2009 passed by the District Judge, Dindori in Civil Appeal No. 62 A/2009 which arose of judgment/decree dated 19.7.2007 in Civil Suit No. 14 A/2007dismissed on the ground that the cause propitiated in the suit at the instance of Respondent Nos. 1 and 2/Plaintiffs was hit by principle of res judicata. The lower appellate Court while setting aside the judgment/decree remitted the whole suit for retrial on merits.
2. Few facts which are not in controversy: The Appellant and Respondents, leaving the State of Madhya Pradesh, are the legal representatives of one Pyarelal, the details whereof is delineated hereunder:
3. Pyarelal owned about 49.45 acres of land at village Subakhar, Revenue Circle Dindori. During his lifetime Pyarelal partitioned the property amongst his sons who were physically placed in their respective shares of the property.
4. Pyarelal died some time in 1984. Subsequent thereof his wife also died. Subsequent to the death of the widow of Pyarelal, the daughter, viz., Premvatibai and Tillabai, Respondent Nos. 1 and 2, brought a suit for declaration and permanent injunction on the basis of will dated 30.8.1988, allegedly executed by their mother in respect of land admeasuring 23.58 out of total holding of the deceased Pyarelal.
5. The trial Court vide judgment/decree dated 5.2.1997 dismissed the suit, holding that, the Plaintiff having failed to prove the will are not entitled for any share on the basis of said will. In an appeal, the appellate court vide its judgment/ decree dated 20.11.1998 upheld the verdict of trial court recording the finding about the will. However, in respect of the suit property admeasuring 23.58, the first appellate Court recorded that the Plaintiffs would be entitled for l/5th share each. The decree was accordingly modified.
6. This judgment/decree dated 20.11.1998, as is admitted at bar has not been challenged and is allowed to attain finality.
7. When the matter stood thus, the Respondents herein, brought the suit for partition forming subject matter of C.S. 10 A/2007. The Plaintiffs/Respondent Nos. 1 and 2 claimed therein the partition of the entire property belonging to Pyarelal. It is in this suit that, an objection was raised by the Defendants who are Appellants herein regarding maintainability on the ground that, the relief sought was hit by res judicata under Section 11 Explanation IV Code of Civil Procedure. The application found favour with the trial court which dismissed the suit on 9.7.2007.
8. This order, i.e., order dated 9.7.2007 being put to challenge in appeal under Section 96, Code of Civil Procedure, the appellate court vide judgment/decree dated 30.9.2009 set aside the judgment/decree by the trial court and remitted the whole suit for retrial on merit.
9. It is this order which is being appealed against on the ground that the lower appellate Court committed grave folly in misconstruing the entire facts.
10. It is urged that, the property of the Pyarelal being partitioned during his life time and in respect of the share of widow of Pyarelal, i.e., mother of Bhaddelal, Sonulal, Amritlal, Premwatibai and Tillabai being delineated by the appellate court vide its judgment/decree dated 20.11.1998, and the order being not challenged, no property in fact remained for being partitioned, as would lead to a maintain an action for partition at the instance of daughters of Pyarelal. It is contended that the trial court appreciating the fact in true perspective rightly held that, the suit was hit by the principle of res judicata. It is urged that the lower appellate court committed grave folly in setting aside the judgment decree and by remitting the whole suit for retrial. It is averred that no cause as such was alive for trial.
11. The Respondents, viz., Respondent Nos. 1 and 2 on their turn, however, supports the appellate order under challenge. It is contended, inter
