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1989 Supreme(MP) 206
IN THE HIGH COURT OF MADHYA PRADESH
B.M. Lal, J.
Bhagwati Prasad
Vs.
Chandrabhanu and Ors.
First Appeal No. 163 of 1984
Decided On: 28.07.1989
For Appellant/Petitioner/Plaintiff: M.L. Jaiswal, Adv.
For Respondents/Defendant: N.K. Shukla and Fakhruddin, Advs.
The Mitakshara Law, as administered in Uttar Pradesh, governs the rights of co-parceners in ancestral property in the erstwhile Vindhya Pradesh Region, and a co-parcener cannot alienate his undivided interest without the consent of the other co-parceners.
Headnote:
PARTITION - ANCESTRAL PROPERTY - MITAKSHARA LAW - SALE BY CO-PARCENER - VALIDITY - VINDHYA PRADESH REGION - APPLICABILITY OF MITAKSHARA LAW - STATES REORGANIZATION ACT, 1956 - EFFECT - CONSTITUTION OF INDIA, ARTICLES 35(B), 372 AND 13(B).
Fact of the Case:
Plaintiff Bhagwati Prasad challenged the sale of ancestral property by his co-parceners Chandra Bhanu and Durgaprasad to respondent Mohandas Sindhi, claiming that the sale was void as it was made without his consent and without partition of the property.
Finding of the Court:
The court held that the sale was void as it was made in violation of the Mitakshara Law, which was applicable in the erstwhile Vindhya Pradesh Region, where the property was situated. The court found that the States Reorganization Act, 1956, did not change the legal situation and that the Mitakshara Law as administered in Uttar Pradesh continued to govern the Vindhya Pradesh Region.
Issues: 1. Whether a co-parcener can alienate his undivided interest in ancestral property without the consent of the other co-parceners under the Mitakshara Law? 2. Whether the Mitakshara Law as administered in Uttar Pradesh was applicable to the erstwhile Vindhya Pradesh Region? 3. Whether the States Reorganization Act, 1956, affected the applicability of the Mitakshara Law in the Vindhya Pradesh Region?
Ratio Decidendi: 1. Under the Mitakshara Law, a co-parcener cannot alienate his undivided interest in ancestral property without the consent of the other co-parceners, unless the alienation is for legal necessity or for payment of antecedent debt by father. 2. The Mitakshara Law as administered in Uttar Pradesh was made applicable to the erstwhile Vindhya Pradesh Region by Ordinance No. 5 of 1948, which was still in force at the time of the suit. 3. The States Reorganization Act, 1956, did not affect the applicability of the Mitakshara Law in the Vindhya Pradesh Region, as Article 35(b) of the Constitution of India continued the laws in force in the various states until they were repealed or amended.
Final Decision: The court allowed the appeal and set aside the judgment and decree of the trial court, declaring the sale of the ancestral property to be void.
B.M. Lal, J.
1. This plaintiff's appeal under Section 96 C.P.C. is directed against the judgment and decree dated 27-8-84 passed by the Court of Additional Judge to the Court of District Judge, Chhatarpur, whereby the suit filed by the appellant for declaration that the sale-deed dated 20-5-83 executed by the respondents No. 1 and 2 in favour of respondent No. 3 for the land in dispute, alienated in the man annexed to the plaint, vide letters A-B-C-D, is not binding on the plaintiff and the same be declared void and the plaintiff alongwith respondents No. 1 and No. 2 be declared as owners thereof, has been dismissed.
2. The short facts leading to this appeal are as under : Pandit Rajaram Sharma had three sons, viz., Kalicharan, Durgaprased and Bhagwati Prasad. Chandra Bhanu, respondent No. 1 is the son of Kalicharan. The house in question situate in Chhatarpur, is ancestral property belonging to their common ancestor Atal Pujari and after his death Pandit Rajaram became the owner of the suit house. He died in the year 1967. After his death all his three sons, stated above, succeeded him. Kalicharan, father of Chandra Bhanu died in the year 1969. This ancestral house and the appurtenant land ad-measuring 55'x 9', after the death of Kalicharan was sold by his son Chandra Bhanu and uncle Durgaprasad and they executed a sale-deed in favour of respondent No. 3 Mohandas Sindhi for an amount of Rs. 38.000/-.
3. The said sale-deed has been challenged by Bhagwati Prasad, the appellant, on the ground inter alia that no partition has taken place between the parties either during the life time of Pandit Rajaram who died in the year 1967 or after the death of Kalicharan who died in the year 1969 and this an cestral house and its appurtenant land remained joint property of Bhagwati Prasad, plaintiff, respondent No. 1 Chandra Bhanu and respondent No. 2 Durgaprased (since dead and his legal representatives are on record). Therefore, the appellant Bhagwati Prasad pleaded that the said sale-deed of the suit house and appurtenant land is not binding on him and he be declared joint owner alongwith the respondents No. 1 and 2.
4. Durgaprasad and Mohandas Sindhi filed a joint written-statement whereas Chandra Bhanu has filed his separate written statement. Durgaprasad died during the pendency of this appeal and accordingly his name was deleted and his legal representatives have been brought on record before this Court.
5. The respondents, while resisting the suit justified the sale of the suit house and its appurtenant land. In the alternative it is contended that to the extent of their share, Chandrabhanu and Durgaprasad can sell the suit property and it is for the purchaser (respondent No. 3 to file a suit for partition.)
6. The plea set up by the respondents No. 1 and 2 that partition has taken place on 25-7-59 and the suit property had come in their possession, have been negatived. Further, the various pleas raised that the same plot was got attached by one Rambux Kurmi in order to justify that the same was the exclusive property of Durgaprasad, have also been negatived.
7. The Trial Court, however, non-suited the plaintiff on the ground that the appellant should have filed a suit for partition applying the dictum laid down in Babulal v. Tulsiram 1978 M.P.L.J37, giving rise to the present appeal.
8. The point in issue which goes to the root of the case is :
"Whether ancestral immovable property situated in erstwhile Vindhya Pradesh State, of undivided Hindu family, could be sold by a co-parcener to the extent of his share without the consent of other co-parceners and without getting it partitioned by metes and bounds?".
9. This position is n"t disputed that according to Mitakshra Law as administered in West Bengal and Uttar Pradesh, no co-parcener can alienate even for value his undivided interest without the consent of the other co-parceners, unless the alienation be for legal necessity or for payment of antecedent debt by father. This is not al
