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IN THE HIGH COURT OF MADHYA PRADESH
S.K. Gangele and Anurag Shrivastava, JJ.
Mukund v. Smt. Sulakshana Bokare and others
First Appeal No.678 of 2000 (Jabalpur); against judgment and decree dated 10.7.2000 passed by eleventh Additional District Judge, Jabalpur in Civil Suit No.500-A/1994; Decided on 15.5.2017
¼2½ Hkw&jktLo lafgrk] 1959 ¼eŒizŒ½ & /kkjk 178] 109 rFkk 110 & iSr`d laifÙk & dqN okfjl ds uke ukekarj.k gks x;k & gd~ dh ?kks"k.kk ds fy, okn & o"kZ 1971 esa iwoZrj foHkktu gksus dk vfHkopu & izfroknh Øekad 1 ,oa 2 }kjk iwoZRrj foHkktu ls bUdkj fd;k x;k & iwoZRrj foHkktu dk ,slk vfHkopu & ekSf[kd vkSj nLrkosth lk{; }kjk lkfcr ugha & fopkj.k U;k;ky; us lgh&gh vfHkfu/kkZfjr fd;k gS fd laifÙk dk eki vkSj lhekadu djds foHkktu ugha gqvk gS vkSj laifÙk vc Hkh la;qDr dqVqac dh laifÙk gSA ¼iSjk 16 ,oa 19½
¼3½ foy & lkfcr djus dh jhfr & ,d vuqizek.kd lk{kh }kjk foy ds fu"iknu ls bUdkj fd;k x;k & mlus dFku fd;k fd ;|fi foy ij mlds gLrk{kj gSa & fdarq nLrkost mlds le{k ugha fy[kk x;k vkSj u gh foy ds fu"iknd }kjk rFkk vU; lk{kh }kjk mlds le{k gLrk{kj fd, x, & fopkj.k U;k;ky; us lgh&gh ik;k fd foy lkfcr ugha dh xbZA ¼iSjk 17½
¼4½ dCtk & dh mi/kkj.kk & iSr`d laifÙk & laifÙk esa lg&Lokeh dk vf/kdkj vkSj fgr gS & Hkwfe ij ,d lg&Lokeh dk dCtk & ,slk dCtk lHkh lg&Lokfeksa dk dCtk gksuk ekuk tk,xk & lg&Lokeh dh csn[kyh dh fLFkfr esa & csn[kyh dk vfHkopu djus okys i{kdkj dks fojks/kh vk'k;] vfofPNUu nh?kZdkyhu dCtk gksuk rFkk [kqys rkSj ij LokfeRo ds vf/kdkj dk iz;ksx djuk LFkkfir djuk pkfg,A , vkb vkj 1957 ,l lh 314 rFkk , vkb vkj 1995 ,l lh 895 vuqlfjrA ¼1971½ 2 ,l lh lh 28] ¼1971½ 2 ,l lh lh 28] ¼1971½ 3 ,l lh lh 784 rFkk ¼2002½ 2 ,l lh lh 62 izHksfnrA ¼iSjk 20 ls 24½
¼5½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 34] ijarqd & okn iw.kZ:is.k ?kks"k.kk ds fy, & dk pykus ;ksX; gksuk & la;qDr fganw dqVqac dh laifÙk & oknh vkUof;d dCTkk j[kus okyh ikbZ xbZ & iw.kZ:is.k vius va'k dh ?kks"k.kk ds fy, okn pykus ;ksX; gSA ¼1993½ lIyhŒ 3 ,l lh lh 129] ¼2007½ 14 ,l lh lh 253] ¼2014½ 14 ,l lh lh 502 rFkk 2012 ¼2½ eŒizŒ ohDyh uksV~l 3 fufnZ"VA ¼iSjk 25 ls 30½
¼6½ fganw mRrjkf/kdkj vf/kfu;e] 1956 & /kkjk 6] ijarqd] Li"Vhdj.k 1 rFkk èkkjk 8] vuqlwph & fgr dk U;kxeu & la;qDr dqVqac dh ferk{kjk lgnkf;dh laifÙk & /kkjk 6 esa 2005 ds la'kks/ku ds iwoZ ewy lgnkf;dh laifÙk /kkjd dh e`R;q & fgr mÙkjthoh lgnkf;d dks U;kxr ugha gksxk & fdarq fgr mÙkjkf/kdkj }kjk mlds okfjlksa dks U;kxr gksxkA 2016 ¼2½ ts ,y ts 1 ¼mPpre U;k;ky;½ rFkk 2017 ¼1½ jk fu 66 ¼mPpre U;k;ky;½ foosfprA , vkb vkj 2006 ,l lh 3332 fufnZ"VA ¼iSjk 31 ls 37½
¼7½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 34] ijarqd & okn iw.kZ:is.k gd~ dh ?kks"k.kk ds fy, & D;k foHkktu vkSj dCtk dh fMØh iznku dh tk ldrh gS & foHkktu vkSj dCtk ds fo"k; esa leqfpr vfHkopu ,oa lgk;rk ds nkok ds fcuk & foHkktu ,oa dCtk dh fMØh iznku ugha dh tk ldrh & fopkj.k U;k;ky; us oknh ds i{k esa ,slh fMØh iznku djus esa =qfV dh gSA , vkb vkj 1961 ,e ih 346] , vkb vkj 1989 dukZVd 45 rFkk ¼2008½ 17 ,l lh lh 491 fufnZ"VA ¼iSjk 38 ls 43½
¼8½ flfoy izfØ;k lafgrk] 1908 & vkŒ 6 fuŒ 17 & izFke vihy izØe ij la'kksèku vkosnu & dc eatwj ugha fd;k tk ldrk & oknh }kjk 11 o"kZ O;ixr gksus ds i'pkr~ la'kks/ku vkosnu fd;k x;k & dksbZ izfr vihy ;k izR;k{ksi izLrqr ugha & bl izØe ij izLrkfor la'kks/ku eatwj ugha fd;k tk ldrkA ¼iSjk 44½
(1) Evidence Act, 1872 -- S.17 -- admission -- means of -- suit property originally belongs to common coparcener -- suit for declaration of title -- plea of earlier partition -- factum of earlier partition denied by defendants -- but pleadings relating to partition not specifically denied by defendants No.1 and 2 -- this cannot be treated as admission. [Para 15
(2) Land Revenue Code, 1959 (M.P.) -- Ss.178, 109 and 110 -- ancestral property -- mutation took place in name of some heirs -- suit for declaration of title -- plea that partition earlier took place in the year 1971 -- plea of earlier partition denied by defendants No.1 and 2 -- such plea of earlier partition -- not proved by oral or documentary evidence -- trial Court rightly held that no partition of property in metes and bounds and property is still joint family property. [Paras 16 & 19
(3) Will -- manner of proving -- execution of Will denied by one attesting witness -- he deposed that although his sign is on Will -- but document not written before him nor signed by executor of Will and other witness before him -- trial Court has rightly found that Will was not proved. [Para 17
(4) Possession -- presumption of -- ancestral property -- co-owner has right and interest in property -- possession of one co-owner over land -- such possession will be dremed to be possession of all co-owners --ouster in case of co-owner -- hostile animus, uninterrupted long possession and openly exercise of right of ownership must be established by party setting up plea of ouster. AIR 1957 SC 314 and AIR 1995 SC 895 followed. (1971)2 SCC 28, (1971)3 SCC 784 and (2002)2 SCC 62 distinguished. [Paras 20 to 24
(5) Specific Relief Act, 1963 -- S.34, Proviso -- suit simpliciter for declaration -- maintainability of -- joint family property -- plaintiff found in constructive possession -- suit simpliciter for declaration of her share is maintainable. (1993) Supp. 3 SCC 129, (2007)14 SCC 253, and (2014)14 SCC 502 and 2012 (II) MPWN 3 referred to. [Paras 25 to 30
(6) Hindu Succession Act, 1956 -- Ss.6, Proviso, Explanation 1 and S.8, Sch. -- devolution of interest -- joint family mitakshara coparcenery property -- original holder of coparcenery property died-prior to amendment of 2005 in section 6 -- interest would not devolve upon -- his heirs by succession. 2016(2) JLJ 1 (SC) and 2017(1) RN 66 (SC) discussed. AIR 2006 SC 3332 referred to. [Paras 31 to 37
(7) Specific Relief Act, 1963-- S.34, Proviso -- suit simpliciter for declaration of title -- whether decree of partition and possession can be granted -- without proper pleading and claim of relief about partition and possession -- decree of partition and possession cannot be granted -- trial Court committed error in granting such decree in favour of plaintiff. AIR 1961 MP 346, AIR 1989 Kar. 45 and (2008) 17 SCC 491 referred to. [Paras 38 to 43
(8) Civil P.C., 1908 -- O.6 R.17 -- amendment application at first appellate stage -- when cannot be allowed -- amendment application made by plaintiff after lapse of 11 years -- no cross-appeal or cross objection filed -- at this stage proposed amendments cannot be allowed. [Para 44
Shrivastava, J. -- 1. This is first appeal under section 96 of Code of Civil Procedure preferred by appellant/defendant No.1 against the judgment and decree dated 10.7.2000, 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 schedules 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 12.8.1992 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 schedules 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 17.5.1959, his wife Yamuna Bai had expired on 25.11.1987, later on Madhukar Rao had expired on 16.7.1990 and his son Yashwant had also expired on 7.5.1982 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:-
Sadashiv Rao Pohankar
(Died 17.5.1959)
Yamuna Bai (Wife)
(Died 25.11.1987)
Madhukar Rao (Died 16.7.1990)
Ratna Prabha
(II-Wife) (D-.3)
Sudha (Def. No. 4)
W/o Shrikrishna Kshirsagar
(D-5)
Yeshwant
(Died 7.5.1982)
Sulakshna
(Plaintiff)
Mukund Rao (D-1)
Charu Sheela (D-2)
(Wife)
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 7.5.1982, 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 schedules 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 16.7.1990 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 schedules 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 collusion 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 schedules 1 and 3. Similarly, defendants 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 l
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