Rights to partition under Hindu Succession Act, timing regarding paternal death, and implications for property classification were examined.

Dated : 09-06-2025 Shri V.S. Choudhary and Shri Priyan Shrivastava – Advocates for the appellants.

Shri V. Mishra – Advocate for the caveator through V.C.

The instant second appeal is filed by the appellants- defendant nos. 2-

A to 2-C and 3.

Learned 5th Civil Judge, Class - II, Satna (Ramkrishna Garg Vs.

Ramdhani Garg), vide judgment and decree dated 15.3.2021 dismissed the suit for the suit property mentioned in Para-1 of the judgment for declaration of partition, possession and mesne profit.

The suit was dismissed by the trial court in which it was admitted fact that the father of the plaintiff is defendant no. 1 and defendant no. 2 Ramkrishna Garg and defendant no. 3 – Kalindi Prasad Garg are real brothers of defendant no.1.

Learned First Appellate Court in Regular Civil Appeal No.23 of 2021 (Ramkrishna Garg Vs. Ramdhani Garg and others), vide judgment and decree dated 24.12.2024 allowed the appeal and decreed the suit for 1/3r of share.

At the time of arguments it was submitted that during life time of father, son cannot institute a suit for partition after commencement of Hindu Succession Act, 1956 and only in the event of death of father, the son is entitled to get share in the property of his father.

It is further submitted that in para-15 of judgment of the trial court, it is mentioned that defendant - Ramdhani in Para-14 of his cross-examination has mentioned that his father used to go for work of "Pandatai" (work of Signature Not Verified Signed by: BASANT KUMAR priest). He had a separate source of income. Therefore, it is proved that he had other source of income but on being asked from learned counsel for the appellant how much money was being earned by them and how they acquired the suit property, he submits that no definite pleadings have been made by defendants establishing his source of income and no witness has been examined to establish the fact that how much he was earning from the work of priest.

It is further submitted by learned counsel for the appellant that earlier there was oral partition and subsequently registered partition had taken place vide deed dated 19.3.1997, but it is seen that registered partition deed came after filing of the suit on 18.3.1997.

Therefore, this appeal is admitted on the following substantial questions of law :-

i. Whether, learned first appellate court is justified in ignoring the well reasoned finding recorded by the trial court that son cannot institute suit for partition after commencement of “Hindu Succession Act, 1956 during the lifetime of his father as the son is entitled to get a share only after death of his father?

ii. Whether, the learned First Appellate Court is justified in reversing the judgment and decree passed by the trial court ignoring the findings recorded by the learned trial court that in Para-15 land bearing Khasra No. 122, 123, and 14 were purchased by defendant no. 1 – Ramdhani from his own income and therefore the same is his self acquired property?

iii. Whether, the learned First Appellate Court is justified in ignoring that the defendant no. 1 made oral partition and thereafter he made registered partition deed on 19.03.1997 and therefore, the suit filed by the plaintiff for partition was not maintainable?

Signature Not Verified Signed by: BASANT KUMAR On payment of PF within seven days, let notices be issued to the respondents.

Till next date of hearing, both the parties are directed to maintain status quo regarding the suit property.

List this appeal after service report is received.