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P.K. Jaiswal, J.
Choudhary Chhatar Singh (d) and others v. Smt. Harsh Kumar
and others
First Appeal No.43 of 1992 (Jabalpur) : against the judgment and
decree passed by Additional District Judge, Narsinghpur, in
Civil Suit No.20-A of 1989 ; Decided on : 16.4.2009.
It is well settled that the father of a joint Hindu family has the power to divide the family property at any moment during his life time, provided he gives his sons equal shares over his ancestal property. If the partition is unequal and unfair, it is open to the sons to challenge the same. In the case of Apoorva (supra), the apex Court has held that if the father does not act bona fide in the matter when he effects partition of joint family property between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate relief including a proper partition. In appropriate cases even during the minority the minor sons through proper guardian may impeach the validity of the partition created by father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their ancestors. AIR 1983 SC 469 followed. Mullas Hindu Law, 17th Edn. para 328 relied on.
[Para 9
(2) Hindu Succession Act, 1956 -- S. 6(1), proviso (as added on 9.9.2005) -- decree of partition passed on 30.11.1991 -- daughters not entitled to the benefit of amendment.
As per new provision of section 6 of Hindu Succession Act, 1956, which came into force on 9.9.2005, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara Law now becomes a co-parcener and thus enjoys right as hitherto enjoyed by a son as co-parcener. The legislature has added a proviso to sub-section (1), providing that any disposition or alienation, including a partition or testamentary disposition entered into before 20.12.2004 are not affected. Here in the present case, decree of partition was passed by the trial Court on 30.11.1991 and therefore the appellants No.4 and 5, daughters of late Chhatarsingh will not get any share in the suit property. [Para 14
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1. This appeal is filed by the defendants No.1, 5 to 8 against the judgment and decree dated 30th November, 1991 passed by Additional District Judge, Narsinghpur in Civil Suit No.20-N89 whereby the learned trial Court decreed the suit for partition filed by respondents No.1 and 2 and held that they are entitled for 1I8th share in agricultural land and house as per schedule C and D appended along with the plaint.
2. Respondent No.1 Smt. Harshkumar, widow of Ramkumar and Choudhary Charanjit Singh, son of Ramkumar filed a suit for partition, possession and mesne profit on the ground that the suit property was an ancestral property of defendant No.1 Choudhary Chattarsingh. He had seven sons and two daughters. He had inherited the suit property from his father Choudhary Guljar Singh.
3. The family tree is as under :
Chaudhary Gulzar Singh
(Dead)
Smt. Nanhi Bai Chhatar Singh Kaushalya Bai
(widow of Guljar Singh) (son of Guljar Singh)
(Died on 1.1.1988) (Def. 7) (Died on 5.5.2008) (name deleted)
(Def.1-Appellant No.1) Kaushalya Bai (widow of Guizar Singh)
Son Son Son Son Son Son Son Daughter Daughter
Udai Singh Shiv Kumar Ram Kumar Shiv Kumar Krishna Anil Divesh Mithila Kusum
(Def.2- (Def.3- (Died 1976) (Def.3- Kumar (Def.5) Kumar (Def.8- (Def.9
res.3 Res.4) res.4) (Died on (Def.6- App.4) App.5
14.5.2000) App.3) Def.9)
(Def.4- (Died on
Rer·5) 9.3.2f4)
Harsh Kumar Charanjit Prabha Sunil Aashish Vineet Namita Prabhakar Pragya
Son Son son son
(widow) (plff.2
(plff.lres.l) res.2) (window) [res. [res. [res. [app. [app. [app .
(Died on 5(b)] 5(c)] 5(d)] 3(a)] 3(b)] 3(c)]
10.5.1992)
4. Undisputed facts are that defendant No.1 Chhatar Singh was son of Guljar Singh. Smt. Nanhibai was the mother of defendant No.1. She died during the pendency of the suit and her name was deleted by order dated 4.4.1988. Guljar Singh died prior to the date of filing of the suit. Ram Kumar son of Chhatar Singh died nine years prior to the date of filing of the suit. The respondents No.1 and 2 filed a suit on the ground that the suit property is a joint Hindu family property. Chhatar Singh inherited the property from his father Guljar Singh, which is an ancestral property. Chhatar Singh was Karta of the family. The ancestral property consists of agricultural land as per Schedule C of the plaint and two ancestral house as per Schedule D. The husband of plaintiff No.1 and father of plaintiff No.2 had l/7th share over the suit ancestral property. She and her son are members of the joint Hindu family. The suit property was never partitioned and, therefore, decree of partition be passed and they be declared owner of l/7th share over the suit property.
5. The appellants (defendants No.1 and 5 to 8) filed their joint written statement and denied the averments made in the plaint and contended that plaintiffs and defendants were members of joint Hindu family prior to 17.6.1983. On 17.6.1983 Chhatar Singh, Karta of the family, partitioned the suit property as per partition deed (Ex.P-2). This partition was affected on 17.6.1983. The plaintiffs received 2.023 hectares agricultural land in survey No.168 1. The plaintiffs were allotted the share in family partition held on 17.6.1983. The house situated at village Aamgaon is self acquired property of Chhatar Singh, who purchased this house on 14.12.1964 (Ex.D1) from the income of his wife and mother. It is also contended that partial partition is permissible under law and the suit filed by the respondents No.1 and 2 is not maintainable and p
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