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2012(1) JLJ 285
A.K. Shrivastava, J.
Rajesh v. Keshar Singh
Second Appeal No.99 of 1999 (Indore) : against the judgment of
First Appellate Court; Decided on 24.11.2011.
According to me, the share allotted to a coparcener after partition would still be a coparcenary property between him and his male issue though it may be his self acquired property for the others. In this regard Article 221(4) of Mulla‘s Hindu Law, 21st Edition, page 337 may be seen.
Held : On scanning the entire gamut, the picture which is formed is that the suit property is the coparcenary property of first defendant Keshar Singh in which plaintiff Rajesh, his mother Sampat Bai (first wife of Keshar Singh), defendant No.1 Keshar Singh himself, second defendant Babu alias Sanjay and two daughters namely Mamta and Pinki born from the second wife Kanchan Bai are entitled for equal share. Thus, in this manner, the plaintiff is having 1/6th share in the entire suit property.
The impugned judgment of learned first appellate Court runs contrary to this well settled principle of law, hence it cannot be allowed to remain stand. Accordingly, it is hereby held that the suit property is coparcenary property of plaintiff and he is entitled to 1/6th share.
(2) Hindu Marriage Act, 1955 -- Ss.5(i), 11 and 16 -- second marriage during the subsistence of first marriage -- void -- however, children born from void or voidable marriage -- shall be legitimate children. [Para 13
(3) Hindu Succession Act, 1956 -- S.6 -- daughter of a coparcener -- entitled for the equal share like a son. [Para 13
¼1½ fganw fof/k && okn laifÙk lgnkf;dh laifÙk lkfcr && lHkh iq= rFkk iqf=;k¡ cjkcj ds fgLls ds gdnkjA esjs vuqlkj] foHkktu ds i‘pkr~ Hkh lgnkf;d dks vkcafVr fgLlk mlds rFkk mldh iq:"k larku ds e/; lgnkf;dh laifÙk gksxk ;|fi ;g nwljksa ds fy, mldh LovftZr laifÙk gks ldrh gSA bl laca/k esa eqqYyk^t fganw yk] 21ok¡ laLdj.k] i`"V 337 dk vuqPNsn 221¼4½ ns[k tk ldrk gSA vfHkfu/kkZfjr % laiw.kZ ekeys dh lw{; tk¡p djus ij tks fp= fufeZr gksrk gS og gS fd okn laifÙk izFke izfroknh ds‘kj flag dh lgnkf;dh laifÙk gS ftlesa oknh jkts‘k] mldh ek¡ lairckbZ ¼ds‘kj flag dh izFke iRuh½] izfroknh Ø-1 ds‘kj flag Lo;a] f}rh; izfroknh ckcw mQZ lat; rFkk f}rh; iRuh ls mRiUu f}rh; izfroknh ckcw mQZ lat; rFkk nks iqf=;k¡ uker% eerk rFkk fiadh cjkcj fgLls ds gdnkj gSaA bl izdkj] bl jhfr ls] oknh laiw.kZ okn laifÙk esa 1@6 fgLlk j[k jgk gSA fo}ku izFke vihy U;k;ky; dk vkf{kIr fu.kZ; fof/k ds bl lqLFkkfir fl)kar ds foijhr gS] blfy, bldk cuk jguk eatwj ugha fd;k tk ldrkA rnuqlkj] ,rn~}kjk ;g vfHkfu/kkZfjr fd;k tkrk gS fd okn laifÙk oknh dh lgnkf;dh laifÙk gS rFkk og 1@6 fgLls dk gdnkj gSA ¼2½ fganw fookg vf/kfu;e] 1955 && /kkjk 5¼1½] 11 rFkk 16 && izFke fookg ds vfLrRo ds nkSjku f}rh; fookg && ‘kwU; && rFkkfi] ‘kwU; ;k ‘kwU;dj.kh; fookg ls mRiUu cPps && /keZt cPps gksaxsA ¼iSjk 13 ¼3½ fganw mÙkjkf/kdkj vf/kfu;e] 1956 && /kkjk 6 && lgnkf;d dh iq=h && iq= dh Hkk¡fr cjkcj fgLls dh gdnkjA ¼iSjk 13
1. This is plaintiff’s second appeal against the judgment of reversal passed by learned first appellate Court dismissing the suit.
2. The facts necessary for disposal of this appeal lie in narrow compass. Suffice it to say that plaintiff Rajesh filed a suit arraying his father Keshar Singh and step-brother Babu as defendants No.1 and 2. Since the suit property is agricultural land, the State of M.P. has been arrayed as defendant No.3 in view of Order 1 rule 3(B) CPC (State Amendment). The suit is for declaration of his share, partition and delivery of separate possession. According to plaintiff, the suit property which is agricultural land is ancestral property and because he is having 1/3rd share in the suit property, it be so declared and accordingly partition be effected by delivering possession of 1/3rd share to him.
3. The defendants No.1 and 2 filed written statement and denied the plaint averments. According to the defendants, the suit property is not the property of HUF. Further it has been denied that plaintiff is the son of Keshar Singh. It has also been pleaded in the special plea that plaintiff’s mother Sampat Bai is not the wife of Keshar Singh. In the written statement, it has been pleaded that defendant is having one son and two daughters born from the wedlock of Kanchan Bai and apart from these three children, Keshar Singh is not having any other son or daughter.
4. Learned trial Court framed necessary issues and after recording evidence of the parties came to hold that Sampat Bai and Keshar Singh (defendant No.1) are the mother and father of plaintiff and Sampat Bai is the first wife of Keshar Singh. The learned trial Court further came to hold that Mamta and Pinki are the daughters of Keshar Singh from second wife Kanchan Bai. The second defendant Babu alias Sanjay is also the son of Keshar Singh but from Kanchan Bai and both the wives of Keshar Singh are alive. The learned trial Court hence found that plaintiff is having 1/5th share in the suit property and accordingly decreed the suit of plaintiff declaring him to be owner of 1/5th share and further passed a decree that he is entitled for separate possession.
5. The first and second defendants filed first appeal before learned first appellate Court which has been allowed by the impugned judgment and the suit of plaintiff has been dismissed.
6. In this manner, this second appeal has been filed by appellant-plaintiff which was admitted on 24.6.1999 on the following substantial question of law :
“Whether the reasons given by the first appellate Court for dislodging the finding recorded by the trial Court are correct, proper and legal?”
7. The contention of Shri Mehta, learned counsel for the appellant is that learned first appellate Court, contrary to law has come to the conclusion that suit property is solely owned by Keshar Singh and therefore during his life time, no partition can be effected. Learned counsel submits that suit property is ancestral property and therefore, the present suit for partition which has been filed by the plaintiff is maintainable and he is entitled to have 1/5th share and separate possession as directed by learned trial Court. Hence, it has been prayed that by allowing this appeal, the impugned judgment and decree passed by learned first appellate Court be set aside and that of learned trial Court be restored.
8. Despite respondents No.1 and 2 were served, none has put appearance on their behalf.
9. Shri Pramod Mitha, learned Government Advocate appears for respondent No.3 who is a formal respondent.
10. Having heard learned counsel for the appellant and after perusal of the record, I am of the view that this appeal deserves to be allowed in part.
Regarding Substantial Question of Law framed :
11. On going through the findings recorded by learned first appellate Court, this Court finds that in para 8 of the impugned judgment, it has been categorically held by learned first appellate Court that the suit property was of Dariyao Singh who
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