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IN THE HIGH COURT OF MADHYA PRADESH
S.K. Gangele, Anurag Shrivastava, JJ.
Mukund - Appellant
Versus
Smt. Sulakshana Bokare - Respondent
First Appeal No. 678 of 2000
Decided On : 15-05-2017
Partition - Code of Civil Procedure - [Section 96] - [11th Additional District Judge, Jabalpur] - Summary: The court declared the respondent as the owner of 1/3-1/3 shares in the suit property and also owner of 1/6 share in another property. The court decreed the suit for partition and possession of respective shares of the respondent in the suit property and also a decree for recovery of 1/3 part of rent since 12.08.1992 from the appellant as mesne profit. The trial Court decreed the suit with a finding that the entire suit property was the joint Hindu family property. The plaintiff has failed to prove that the disputed properties were partitioned in the life time of Smt. Yamuna Bai in the year 1971 and the properties shown in schedule 1 was allocated to Late Madhukar Rao, properties mentioned in schedule 2 was given to Late Smt. Yamuna Bai and properties mentioned in schedule 3 came in share of Yashwant Rao. The trial Court also recorded the findings that after the death of Yashwant Rao on 07.05.1990, his share in the property shall devolve on Madhukar Rao. Late Smt. Yamuna Bai's share after her death shall devolve upon her son Madhukar Rao and daughter Smt. Sudha equally. The disputed Wills alleged to have been executed by Madhukar Rao in favour of defendant No.1 Mukund Rao is not found proved. Similarly, the Will said to have executed by Late Smt. Yamuna Bai in favour of defendant No.4 is also not found proved. The trial Court finally arrived at conclusion that after the death of Madhukar Rao, his share in disputed property shall be inherited by, plaintiff Smt. Sulakshna, defendant No.1 Mukund Rao and defendant No.3 Smt. Ratna Rao (wife) in equal 1/3-1/3 shares. Thus, the trial Court declared 1/3 share of plaintiff in the properties mentioned in schedule 1 and 3 and 1/6 share in properties mentioned in schedule 2 annexed with the plaint. The trial Court had further granted decree of partition and possession in respect of shares of plaintiff in suit properties, which are not acquired by the Government in Land Acquisition proceedings. The trial Court had also granted decree of recovery of arrears of 1/3 part of the rent from 12.08.1993 as mesne profit against the defendant No.1.
Fact of the Case:
The suit involved a dispute over the ownership and partition of ancestral properties. The plaintiff claimed a share in the properties and sought a declaration of title, injunction, and recovery of rent.
Finding of the Court:
The trial Court found that the entire suit property was joint Hindu family property and that the plaintiff had a 1/3 share in the properties. The court also found that the disputed Wills alleged to have been executed by Madhukar Rao and Smt. Yamuna Bai were not proved. The court further concluded that after the death of Madhukar Rao, his share in the disputed property shall be inherited by the plaintiff, defendant No.1, and defendant No.3 in equal 1/3 shares.
Issues: The issues included whether the suit was barred by law and whether the suit for a mere declaration of share in the property without seeking relief of partition and possession was maintainable.
Ratio Decidendi: The burden of proof of partition lies upon the plaintiff. The court found that the plaintiff failed to prove that the disputed properties were partitioned in the life time of Smt. Yamuna Bai in the year 1971. The court also found that the disputed Wills alleged to have been executed by Madhukar Rao and Smt. Yamuna Bai were not proved. The court concluded that the plaintiff had a 1/3 share in the properties.
Final Decision: The court set aside the decree of the trial Court in respect of partition and possession of the suit property. It declared that the plaintiff had a 1/3 share in the suit property and was entitled to receive 1/3 of the rent collected by the appellant from the tenants as decreed by the trial Court. The judgment and decree passed by the trial Court were modified, and the parties were to bear their own costs.
Anurag Shrivastava, J.
This is first appeal under Section 96 of Code of Civil Procedure preferred by appellant/defendant No.1 against the judgment and decree dated 10.07.2000, passed by 11th Additional District Judge, Jabalpur in Civil Suit No.500-A/1994, whereby the Court declared the respondent No.1/plaintiff as owner of 1/3-1/3 shares in suit property shown in schedule 1 and 3 respectively and also owner of 1/6 share in suit property shown in schedule 2 of the plaint. The trial Court also passed a decree for partition and possession of respective shares of respondent No.1/plaintiff in suit property and also a decree for recovery of 1/3 part of rent since 12.08.1992 from appellant/defendant No.1 as mesne profit.
2. This is not disputed that the common ancestor of the parties Late Shri Sadashiv Rao Pohankar was the owner of suit property situated in Jabalpur and Village Purwa as shown in schedule 1, 2 and 3 annex to plaint. Smt. Yamuna Bai was his wife. They had one son Late Madhukar Rao and a daughter Smt. Sudha w/o Shri Krishna Kshirsagar. Smt. Ratna Prabha is second of wife of Madhukar Rao. There are two sons Yashwant and Mukund Rao and one daughter Sulakshana born from first wife of Madhkar Rao, who is no more. It is also not disputed that Sadashiv Rao had expired on 17.05.1959, his wife Yamuna Bai had expired on 25.11.1987, later on Madhukar Rao had expired on 16.07.1990 and his son Yashwant had also expired on 07.05.1982 prior to death of Madhukar Rao. Smt. Ratna Prabha widow of Late Shri Madhukar Rao had expired during pendency of appeal. The genealogy of parties are shown as under:-
3. The plaintiff's suit in brief is that in life time of Smt. Yamuna Bai an oral partition of the joint family property had taken place in the year 1971 and in that partition Late Shri Madhukar Rao had received the property as shown in plaint schedule 1, Smt. Yamuna Bai was given the land shown in schedule 2 and Late Yashwant had been given the land shown in schedule 3 annexed to the plaint apart from some more land which has been acquired by the State Government for construction of medical college. In this partition, the plaintiff, Mukund Pohankar and Smt. Sudha had also received separate land. Later on Yashwant had been died on 07.05.1982, he was unmarried and issue less. Therefore, his property devolved on his father Madhukar Rao, thus Madhukar Rao became owner of disputed property shown in schedule 1 and 3. Yamuna Bai died on 25.11.1987 and on her death, her property devolved in equal shares to Madhukar Rao and Smt. Sudha. Madhukar Rao had expired on 16.07.1990 and on his death, his property devolved on the plaintiff, his son Mukund Rao and wife Smt.Ratna Prabha in equal shares. Thus, the plaintiff has 1/3 share in the property shown in schedule 1 and 3 annexed to the plaint and also 1/6 share in the property shown in schedule 2 of the plaint.
4. It is further pleaded by the plaintiff that the defendant No.1 Mukund Pohankar in colusion with defendant No.5 has got prepared a forged and false Will said to have been executed by Shri Madhukar Rao and on the basis of this Will he is claiming the ownership in respect of house and land shown in schedule 1 and 3. Similarly, defendant No.4 and 5 are claiming the ownership over the property shown in schedule 2 of plaint on the basis of forged Will set to have executed by Yamuna Bai in favour of defendant No.4. On the basis of these Wills, the defendants have got their names mutated in Municipal and Revenue Records and they are claiming ownership on the disputed land. As per plaintiff Late Madhukar Rao and Smt. Yamuna Bai had never executed any Will. On the alleged date of Will, Madhukar was seriously ill and not in a mental and physical stage to execute the Will. The Wills are forged and fabricated. At present, there are four tenants in the disputed house from whom. Defendant No.1 is collecting the rent. Since in revenue records, the names of defendant No.1 have been mutated illegally with
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