Back
2019 Supreme(MP) 169
Prakash Shrivastava, J.
Mahendra Kumar v. Lalchand & another
First Appeal No. 69 of 1997 (Indore); against the judgment and decree dated 6.6.1987 and 14.7.1987 passed by Vth Additional District Judge, Indore in COS No. 2.1972A
Decided on 11.3.2019
A.K. Sethi with Rishabh Sethi for appellant; A.S. Garg with Yeshpal Rathore for respondent; S.K. Chourishi present in person.
Headnote:
(1) Civil P. C., 1908 -- O.22 R.5 -- impleadment as legal representative sought on basis of Will executed by deceased party
-- enquiry under O. 22 R. 5 is contemplated. [Para 25
(2) Civil P. C., 1908 -- O. 22 R.5 -- scope -- limited question relating to legal representatives is decided only for purpose of bringing LRs on record - does not operate as res judicata -- inter se dispute between rival LRs has to be independently tried and decided in appropriate proceedings. 2010(2)JLJ 1 (SC) followed. [Para 27
(3) Civil P. C., 1908 -- S.2 (11), O.22 Rr.2 and 5 -- legal representative -- no finding on basis of alleged Will can be given at appellate stage because Will is yet to be proved in appropriate proceedings by tendering it in evidence as per requirement of Evidence Act and Succession Act. [Para 29
(4) Civil P. C., 1908 -- S.2 (11), O. 22 Rr. 2 and 5 -- prayer for substitution of his name in the decree of Court below in place of deceased on strength of alleged will -- there is no provision permitting substitution of name in decree without impleading as legal representative of deceased. (1996)10 SCC 293, 2008(3) MPWN 113 (SC), AIR 1972 SC 1181, (1999)3 SCC 109, 2007(3) MPWN 52, AIR 2009 Raj. 36, 1994 JLJ 110 and AIR 1994 SC 853 distinguished. [Para 29
(5) Fraud -- allegation of manipulation of record and fraud while amending cause title of appeal -- mere mentioning of incorrect date of Court's order while incorporating amendment -- cannot lead to such an inference. (2001)2 SCC 221 distinguished. [Para 34
(6) Civil P. C., 1908 -- S.2 (11) -- legal representative -- cannot litigate his personal right as legal representative. 2007(2) MPLJ 445 relied on. [Para 36
(7) Decree -- scope of altering, modifying or amending preliminary decree -- stage of final decree -- in appropriate circumstances, preliminary decree can be amended -- even another preliminary decree re-determining rights and interest of parties can be passed. AIR 2012 SC 169 followed. AIR 1965 SC 1055 distinguished. AIR 1977 SC 292 explained. [Para 40
(8) Deed -- effect of relinquishment without executing duly stamped registered document -- is compulsorily registerable document -- inadmissible in evidence for primary purpose -- in suit for partition, such un-stamped instrument is inadmissible in evidence even for collateral purpose until same is impounded. (2015)16 SCC 787 followed. [Para 44
(9) Hindu Law -- limited right of widow -- ripened into full right by virtue of S.14 of Hindu Succession Act, 1956 -- alleged relinquishment of her right through affidavit prior to 1949 -- could not have been done due to her limited right and for want of necessity on benefit of estate. AIR 1962 SC 83 followed. [Para 51
(10) Adverse Possession -- suit for partition -- no issue framed in this regard -- necessary ingredients of adverse possession not considered -- even otherwise, plaintiff could not have claimed title by way of adverse possession. 2014(3) MPLJ 336 (SC) and (2018)11 SCC 449 followed. [Para 52
¼1½ flfoy izfØ;k lafgrk] 1908 && vk-22 fu-5 && e`r i{kdkj }kjk fu"ikfnr fcy ds vk/kkj ij fof/kd izfrfuf/k ds :i esa i{kdkj cuk;k tkuk bZfIlr && vk-22 fu- 5 ds v/khu tk¡p vuq/;kr gSA ¼iSjk 25
¼2½ flfoy izfØ;k lafgrk] 1908 && vk- 22 fu-5 && O;kfIr && fof/kd izfrfuf/k;ksa ls lacaf/kr lhfer iz'u fof/kd izfrfuf/k;ksa dks vfHkys[k ij ykus ds iz;kstukFkZ gh fuf'pr fd;k tkrk gS && iwoZ U;k; ds :i esa izofrZr ugha gksrk && izfr}a}h fof/kd izfrfuf/k;ksa ds e/; vkilh fookn dk leqfpr dk;Zokgh esa Lora= :i ls fopkj.k vkSj fofu'p;u fd;k tkuk gksrk gSA 2010¼2½ ts ,y ts 1 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 27
¼3½ flfoy izfØ;k lafgrk] 1908 && /kkjk 2¼11½] vk-22 fu-2 rFkk 5 && fofèkd izfrfuf/k && vihy ds izØe ij vfHkdfFkr fcy ds vk/kkj ij dksbZ fu"d"kZ ugha fn;k tk ldrk D;ksafd fcy dks vHkh leqfpr dk;Zokgh esa lk{; vf/kfu;e rFkk mÙkjkf/kdkj vf/kfu;e dh vis{kkuqlkj lk{; esa izLrqr dj lkfcr fd;k tkuk gSA ¼iSjk 29
¼4½ flfoy izfØ;k lafgrk] 1908 && /kkjk 1¼11½] vk-22 fu-2 rFkk 5 && vfHkdfFkr fcy ds vk/kkj ij fupys U;k;ky; dh fMØh esa e`rd ds LFkku ij Lo;a dk uke izfrLFkkfir fd, tkus gsrq izkFkZuk && e`rd ds fof/kd izfrfuf/k ds :i esa i{kdkj cuk, fcuk fMØh esa uke dh izfrLFkkiuk vuqKkr djus dk dksbZ izca/k ugha gSA ¼1996½10 ,l lh lh 293] 2008¼3½ e-iz- ohDyh uksV~l 113 ¼mPpre U;k-½] 2007¼3½ e-iz- ohDyh uksV~l 52] , vkb vkj 1972 ,l lh 1181] ¼1999½3 ,l lh lh 109] 2007¼2½ ,e ih ,y ts 445] , vkb vkj 2009 jkt-36] 1994 ts ,y ts 110 rFkk , vkb vkj 1994 ,l lh 853 izHksfnrA ¼iSjk 29
¼5½ diV && vihy dk okn 'kh"kZd la'kksf/kr djrs le; vfHkys[k ds Nylkèku vkSj diV dk vfHkdFku && la'kks/ku lekfo"V djrs le; U;k;ky; ds vkns'k ds fnukad dk xyr mYys[k ek= && ,slk vuqeku ugha fd;k tk ldrkA ¼2001½2 ,l lh lh 221 izHksfnrA ¼iSjk 34
¼6½ flfoy izfØ;k lafgrk] 1908 && /kkjk 2¼11½ fof/kd izfrfuf/k && fofèkd izfrfuf/k ds :i esa vius O;fDrxr vf/kdkj dk eqdnek ugha pyk ldrkA 2007¼2½ ,e ih ,y ts 445 voyafcrA ¼iSjk 36
¼7½ fMØh && izkjafHkd fMØh ifjofrZr] mikarfjr vFkok la'kksf/kr djus dh O;kfIr && vafre fMØh dk izØe && leqfpr ifjfLFkfr;ksa esa izkjafHkd fMØh la'kksfèkr dh tk ldrh gS && ;gk¡ rd fd i{kdkjksa ds vf/kdkj rFkk fgr iqufuZ/kkZfjr djrs gq, ,d vU; izkjafHkd fMØh Hkh ikfjr dh tk ldrh gSA vkb vkj 2012 ,l lh lh 169 vuqlfjrA , vkb vkj 1965 ,l lh 1055 izHksfnrA , vkb vkj 1977 ,l lh 292 Li"VhÑrA ¼iSjk 40
¼8½ foys[k && lE;d~ :i ls LVkafir jftLVªhÑr nLrkost fu"ikfnr fd, fcuk R;kx dk izHkko && vfuok;Zr% jftLVªhÑr fd, tkus okyk nLrkost gS && izkFkfed iz;kstu ds fy, lk{; esa xzká ugha && foHkktu ds fy, okn esa] ,slk vLVkafiV fy[kr lkaikf'oZd iz;kstu ds fy, Hkh lk{; esa rc rd vxzká gS tc rd fd og ifjc) ugha fd;k x;k gksA ¼2015½16 ,l lh lh 787 vuqlfjrA ¼iSjk 44
¼9½ fganw fof/k && fo/kok dk lhfer vf/kdkj && fganw mÙkjkf/kdkj vfèkfu;e] 1956 dh /kkjk 14 ds vk/kkj ij iw.kZ vf/kdkj esa ifjiDo && lu~ 1949 ds iwoZ 'kiFki= ds ek/;e ls mlds vf/kdkj dk vfHkdfFkr R;kx && mlds lhfer vf/kdkj ds dkj.k rFkk laink ds Qk;ns ds fy, vko';drk ds vHkko esa ugha fd;k tk ldrk FkkA , vkb vkj 1962 ,l lh 83 vuqlfjrA ¼iSjk 51
¼10½ izfrdwy dCTkk && foHkktu ds fy, okn && bl ckjs esa dksbZ fook|d fojfpr ugha && izfrdwy dCts ds vko';d la?kVdksa ij fopkj ugha fd;k x;k && vU;Fkk Hkh] oknh izfrdwy dCts ds ek/;e ls gd dk nkok ugha dj ldrh FkhA 2014¼3½ ,e ih ,y ts 336 ¼,l lh½ rFkk ¼2018½11 ,l lh lh 449 vuqlfjrA ¼iSjk 52
JUDGMENT
1. By this first appeal u/S.96 of the CPC, plaintiff No. 2 has challenged the judgment and decree dated 6.6.1987 and 14.7.1987 passed by the learned V Addl. District Judge, Indore in COS No.2/1972-A which is in the nature of final decree in the partition suit holding that Rambhabai plaintiff No.1 and Lalchand has ½ - ½ share in the suit property and accordingly partitioning it.
2. In this appeal, the lis is between Mahendra Kumar and Rambhabai (since deceased through Shrikrishna Chourishi).
3. The Family Tree for convenience is reproduced as under :
Dhannalal
(Died on 28.5.1943)
Wife Sunder Bai
(Died on 26.11.1945)
Sohanlal (Son) Lalchand
(Adopted in 1913 by Dhannalal and (Adopted on 3/7/1945 by Sunder Bai)
Sundarbai (Died on 11/9/1923)
Wife Rambha Bai
(Died in 1995)
Mahendra Kumar
(Adopted on 7.12.1946) by Rambhabai
4. It would be worthwhile to take note of the chequered history of this case.
5. On 6.9.1943 Rambhabai had filed the suit for partition as against Sundarbai with the plea that Seth Dhannalal was the owner of the suit property who died intestate on 28.5.1943. Sundarbai was the wife of Dhannalal and mother-in-law of Rambhabai. Sohanlal was adopted by Dhannlal in 1913 (Samvad year 1970) and Rambhabai was married to Sohanlal thereafter, but about four years after the marriage Sohanlal had Dhannalal (Died on 28.5.1943) Wife Sunder Bai (Died on 26.11.1945) Sohanlal (Son) (Adopted in 1913 by Dhannalal and Sundarbai (Died on 11.9.1923) died on 11.9.1923, thereafter Rambhabai had continued to live with Dhannalal and Sunderbai as their daughter-in-law. Dhannalal had died on 28.5.1943 and the relationship between Sundarbai and Rambhabai became strained, hence the suit for partition was filed by Rambhabai.
6. Sundarbai (defendant in the suit) filed the written statement and denied the factum of adoption of Sohanlal and had also denied that Rambhabai was treated by her as daughter-in-law and further denied her any right on the suit property. After the issues were framed on 5.11.1943 pleaders for both the parties made a request to pass the preliminary decree at the first instance.
7. Trial Court had passed the preliminary decree dated 31.7.1944 holding in Para 11 of the judgment that the adoption of Sohanlal was duly proved and accordingly by way of preliminary decree declared that Rambabai and Sundarbai had equal share in the suit property and further directed that a Commissioner will be appointed who will proceed with the partition by metes and bounds and issued certain other further directions. The preliminary decree came to be challenged at the instance of Sundarbai in Civil FA No.27/44 (New No.1/1948) before His Highness the Maharaja Holkar, High Court of Judicature Indore.
8. During the pendency of first appeal Sundarbai had filed an application on 20th July, 1945 with a prayer to add Lalchand as the party in the appeal on the ground that Lalchand was adopted by her as son on 3rd July, 1945. The application was initially rejected on 25th August, 1945, but subsequently Sundarbai had died on 26.11.1945 and Lalchand had filed an application for his substitution as her L.R u/O.22 rule 3 read with rule 11 of the CPC which was opposed by Rambhabai, hence the issue arose before the first appellate Court if Lalchand was adopted son of Sundarbai and was entitled to prosecute the appeal as L.R. Vide order dated 17th September, 1946 the first appellate Court held Lalchand to be validly adopted and he was brought on record. Meanwhile another development took place and Rambhabai adopted Mahendra Kumar and the first appellate Court vide order dated 1.9.1947 held the adoption to be valid and brought Mahendra Kumar on record, Rambhabai made an application along with the affidavit stating that she had no claim in the suit property and would be contended to have a decree for ½ share of the property made in favour of Mahendra Kumar.
9. In view of the aforesaid development, the first app
