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2019 Supreme(MP) 622
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
VANDANA KASREKAR, J.
Chandribai and Others – Appellants
Versus
Tulsiram and Others – Respondents
S.A. No. 257 of 2015
Decided On : 05-08-2019
Advocate Appeared:
For the Appellant : Shri S.K. Pawnekar.
For the Respondent: Shri Avinash Kumar Khare, Shri Amit Agrawal, Shri Jagdish Baheti.
The burden of proof lies on the party asserting the property as joint family property, and the amended Section 6 of the Act can only be invoked in case of property being ancestral.
Headnote:
C.P.C. - Civil Suit - Section 100 - 6 of the Act - [SUMMARY]
Fact of the Case:
The plaintiffs filed a suit for declaration and setting aside a sale deed, claiming the property as ancestral undivided property. The trial court ruled in favor of the plaintiffs, but the first appellate court reversed the decision. The second appeal was filed challenging the first appellate court's decision.
Finding of the Court:
The court found that the plaintiffs failed to prove the property as ancestral and that the amended Section 6 of the Act could only be invoked in case of property being ancestral. As the succession opens on the death of the Karta, the suit was not maintainable during the lifetime of Tulsiram.
Issues: The main issues were the nature of the property, the applicability of the amended Section 6 of the Act, and the maintainability of the suit during the lifetime of Tulsiram.
Ratio Decidendi: The court held that there is no presumption of a property being joint family property only on account of the existence of a joint Hindu family. The burden of proof lies on the party asserting the property as joint family property. The amended Section 6 of the Act can only be invoked in case of property being ancestral, and succession opens on the death of the Karta.
Final Decision: The appeal was dismissed as no substantial question of law arose for consideration.
ORDER :
1. This appeal has been filed under Section 100 of C.P.C. being aggrieved by the judgment and decree passed by the Additional District Judge, Susner, District-Shajapur in Civil regular Appeal No. 64/2013 whereby, reversing the judgment and decree passed by the Civil Judge, Class-II Nalkheda, District-Shajapur, passed in Civil Suit No. 19-A/2011 dated 31.10.2013.
2. That, during pendency of this appeal, the appellant no. 2 and has withdrawn their suit vide order dated 10.08.2018.
3. This appeal has been filed now in respect of appellant no. 1.
4. The appellant/plaintiff filed a suit for declaration as well as for setting aside the sale deed dated 25.11.2010 which has been executed in favour of defendant nos. 4, 5, 6 and 7. It was alleged that the disputed property is ancestral undivided property of plaintiffs and plaintiffs have right, title, interest since their birth in the property. It was also alleged that the property has been purchased by transfer of ancestral property and, thus, at present the property is ancestral one. Tulsiram, the father of the plaintiffs has a brother Kaniram @ Kanhaiyalal and partition has already took place between them. It was also alleged that Badrilal, who is the brother of the plaintiffs filed a suit against Tulsiram in which a compromise was arrived in between Tulsiram and Badrilal. The defendant nos. 4 to 7 influenced and by corrosion and fraud executed sale deed from Tulsiram without payment of consideration in their favour. Plaintiffs have stated that they have 1/6th share in the property.
5. Defendant nos. 1, 2 and 3 filed their written statement and submitted that the sale deed was executed fraudulently by playing a fraud with Tulsiram by defendant nos. 4, 5, 6 and 7.
6. The defendant nos. 4, 5, 6 and 7 filed a separate written statement denying the facts alleged in the plaint and alleged that the property is self acquired property of Tulsiram who executed sale deed in their favour for his personal needs.
7. The trial Court after framing the issues and recording the evidence held that the plaintiffs have 1/6th share each in the disputed property and they are entitled for partition and possession. The Court has further held that the property is not self acquired one. As against the judgment and decree of the trial Court, the defendant nos. 4, 5, 6 and 7 preferred F.A. No. 64/2013 and the same was allowed whereby, reversing the judgment, passed by the trial Court and, therefore, the present second appeal has been filed.
8. Learned counsel for the appellant submits that the 1st Appellate Court has erred in reversing the judgment passed by the Court below. He further submits that the 1st Appellate Court trial Court has erred in holding that during the lifetime of Tulsiram, the plaintiffs, who are the daughters are not entitled for partition. Infact, the suit was filed for declaration with consequential relief of title of plaintiffs, who are the daughters of Tulsiram and as per Hindu Succession Act which was amended retrospectively in the year 2005 have equal share in father's property. He further submits that the 1st Appellate Court has erred in holding that the partition took place among Tulsiram and his brother Kaniram and the disputed property falls in the share of Tulsiram after partition is self acquired property. He further submits that the 1st Appellate Court has erred in not considering the recital in the sale deed in which it has been mentioned as “ancestral property.” As against this recital, a presumption contrary to the nature of the partition cannot and ought not to be arrived by the 1st Appellate Court. On the basis of such arguments, learned counsel for the appellant submits that the appeal deserves to be admitted.
9. Learned Senior Counsel for the respondent no. 4 as well as learned counsel for the respondent no. 2 submits that no substantial question of law arises for consideration in the second appeal and, therefore, the appeal deserves to be dismissed.
10. Heard learned couns
