Chattisgarh High Court
Ramsanehi Loniya vs Smt. Sudha Singh Chauhan on 4 October, 2023
Neutral Citation
2023:CGHC:24282-DB
Page 1 of 35
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
(Delivered on 04.10.2023)
FA No. 41 of 2022
1. Ramsanehi Loniya S/o Late Pritam Lal Loniya, Aged About 50 Years
R/o Agrasen Chowk, Link Road, Tahsil and District Bilaspur
(Chhattisgarh)(Defendant No. 2 in Civil Suit No. 22A/2017)
2. Bharat Lal Loniya, S/o Late Pritam Lal Loniya, Aged About 45 Years
R/o Agrasen Chowk, Link Road, Tahsil and District Bilaspur
(Chhattisgarh) (Defendant No. 3 in Civil Suit No. 22A/2017)
3. Deleted (Pawan Lal Loniya Defendant No. 4 in Civil Suit No.
22A/2017), since deceased being represented through following Legal
Heirs :
3(a) Smt. Sarita Widow of Late Pawal Lal Loniya, Aged about 30 Years,
R/o Agrasen Chowk, Link Road, Tahsil and District Bilaspur
(Chhattisgarh)
3(b) Dev Loniya Son of Late Pawal Lal Loniya, Aged about 06 Years,
R/o Agrasen Chowk, Link Road, Tahsil and District Bilaspur
(Chhattisgarh)
4. Ku. Saraswati, D/o Late Pritam Lal Loniya, Aged about 48 Years R/o
Agrasen Chowk, Link Road, Tahsil and District Bilaspur (Chhattisgarh)
(Defendant No. 6 in Civil Suit No. 22A/2017)
5. Smt. Shashi Devi, W/o Vimal Singh Chauhan And D/o Late Pritam Lal
Loniya, Aged About 55 Years R/o Agrasen Chowk, Link Road, Tahsil
And District Bilaspur (Chhattisgarh) (Defendant No. 7 in Civil Suit No.
22A/2017)
6. Smt. Triveni, W/o Suman Chauhan, Aged About 57 Years R/o House
No. 398, Single Story, State Bank Colony, Baldev Bag (Khookhri
Road), Jabalpur, District Jabalpur (M.P.) (Defendant No. 9 in Civil Suit
No. 22A/2017)
7. Smt. Savitri W/o Shiv Prasad Chauhan, Aged About 52 Years R/o
Through Shiv Prasad Chauhan, Booking Clerk Railway Station, Luniya
Para, Station Road, Mau, Indore, District Indore (M.P.) (Defendant No.
10 in Civil Suit No. 22A/2017)
8. Prahlad Singh Chauhan, Aged About 60 Years R/o Purani Basti, Near
Bus Stand, adjacent to the house of Hayat Khan, Near Society
Chakki, A.C.C. Colony, Kaimur, Tahsil Kaimur, District Katni (M.P.)
(Defendant No. 11-A in Civil Suit No. 22A/2017)
9. Kartik Chauhan, S/o Prahlad Singh Chauhan, Aged About 18 Years
R/o Purani Basti, Near Bus Stand, adjacent to the house of Hayat
Khan, Near Society Chakki, A.C.C. Colony, Kaimur, Tahsil Kaimur,
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District Katni (M.P.)(Defendant No. 11-B in Civil Suit No. 22A/2017)
10. Harshit Chauhan, S/o Prahlad Singh Chauhan, Aged About 18 Years
R/o Purani Basti, Near Bus Stand, adjacent to the house of Hayat
Khan, Near Society Chakki, A.C.C. Colony, Kaimur, Tahsil Kaimur,
District Katni (M.P.)(Defendant No. 11-C in Civil Suit No. 22A/2017)
--- Appellants
Versus
1. Smt. Sudha Singh Chauhan W/o Late Shankar Lal Loniya, Aged
About 49 Years R/o Bhagwan Manglam Parisar, Telephone
Exchange Road, Bilaspur, Tahsil and District Bilaspur (Chhattisgarh)
(Plaintiff No. 1-A in Civil Suit No. 22A/2017)
2. Sashram Singh Chauhan, S/o Late Shankar Lal Loniya, Aged About
24 Years R/o Bhagwan Manglam Parisar, Telephone Exchange
Road, Bilaspur, Tahsil and District Bilaspur (Chhattisgarh) (Plaintiff
No. 1-B in Civil Suit No. 22A/2017)
3. Niyati Chauhan, D/o Late Shankar Lal Loniya, Aged About 21 Years
R/o Bhagwan Manglam Parisar, Telephone Exchange Road,
Bilaspur, Tahsil and District Bilaspur (Chhattisgarh) (Plaintiff No. 1-C
in Civil Suit No. 22A/2017)
4. Deleted (Kanti Devi) (Died) Hon'ble Court Order Dated 15/09/2022.
5. Smt. Santoshi, W/o Chandrasen Singh, Aged About 51 Years R/o
Village Mundo-Ghat, Pardeshipara (Via Dhannupali), District
Sambalpur (Odisha) (Defendant No. 12 in Civil Suit No. 22A/2017)
6. Smt. Saroj, W/o Vijay Singh, Aged About 46 Years R/o Village Khet-
Rajpur (Tiwari Gali), Sambalpur, Tahsil and District Sambalpur
(Odisha) (Defendant No. 13 in Civil Suit No. 22A/2017)
7. Smt. Pratima, W/o Gokul Singh Rajput, Aged About 40 Years R/o
Village Bharenga Abhanpur, Raipur (Chhattisgarh) Pin No. 493661
(Defendant No. 14 in Civil Suit No. 22A/2017)
8. Smt. Preeti Singh, W/o Shashikant Singh @ Bhooru, Aged About 39
Years R/o Village Gaushala, Bahudiyapara, Tahsil and District
Sambalpur (Odisha)(Defendant No. 15 in Civil Suit No. 22A/2017)
--- Respondents
For the Appellants : Mr. Y. C. Sharma, Sr. Advocate with Ms.
Pooja Loniya, Sachin Nidhi, Hariom Rai,
Vishal Chandravanshi, Ankur Kashyap,
Advocates.
For Respondents 1, 2 & 3 : Mr. B.P. Sharma, Advocate.
Hon’ble Shri Justice Goutam Bhaduri, Judge &
Hon’ble Shri Justice Sanjay S. Agrawal, Judge
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C.A.V. Judgment
The following judgment of the Court is delivered by Goutam Bhaduri, J,
1) The instant appeal is against the judgment and decree dated
29.01.2022 passed by the learned Ist Additional District Judge,
Bilaspur (C.G) in Civil Suit No.22-A/2017 in favour of the
respondents / plaintiffs in respect of property situated at Juna
Bilaspur and the lands situated at village Ranigaon, Sub-Tahsil
Ratanpur, Tahsil Kota and Mouja Sirgitti Bilaspur whereby the decree
is passed for partition and possession to the extent of 1/13 to the
plaintiff Shankar Lal and other share-holders. The decree would not
include the sale of lands made by Bhagwan Deen, Surja Bai and
Pritamlal Loniya in respect of Khasra Nos. 500, 501 & 601 situated at
Juna Bilaspur. In sum and substance, by judgment and decree the
plaintiff and defendants have been held to be to be entitled to partition
and possession to the extent of 1/13 in respect of the property
situated at Juna Bilaspur as stated above and the land bearing
Kh.No.1757 admeasuring 0.352 hectares situated at village Ranigaon
Sub-Tahsil Ratanpur, Tahsil Kota and the property of Kh.
No.811/1Dha, 811/16, 812/1ga, 813/1ga admeasuring 0.012
hectares. .
2) The brief facts of the case are that Shankar Lal Loniya (since
deceased) who is now represented by his legal representatives i.e.,
wife Smt. Sudha Singh Chauhan (R-1), son Sashram Singh Chauhan
(R-2) and daughter Niyati Chauhan (R-3) filed a suit claiming
partition, declaration of title and possession.
3) In order to understand the status of parties to the lis, the genealogical
tree would be necessary which is reproduced hereinbelow :
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Bhagwandeen (died-1976)
(Wife-1) (Wife-2)
Surja Bai (died-1990) Ganga Bai (died-1988)(Son)
Preetamlal (died-2014)(Wife-1) (Def-5) (Wife-2) (Def-8)
Sita Devi (died-Sep 2014) Kanti Devi (died-Dec 2020)Appellants
RamSanehi Bharatlal Pawanlal Saraswatil Sahashi Triveni Devi Savitri Devi Madhu (died)
(Def-2) (Def-3) (Def-4) (Def-6) (Def-7) (Def-9) (Def10) (Def-11)Prahlad Singh Kartik Chauhan Harshit Chauhan
(Def 11a) (Def 11b) (Def 11c)Respondents
Shanker (died-Dec 2014) Santoshi Devi Saroj Devi Pratima Devi Priti
(Original Plaintiff) (Def-12) (Def-13) (Def-14) (Def-15)Sudha Singh (Wife)
(Plaintiff No.1)Sasram Singh Niyati (Daughter)
(Plaintiff No.2) (Plaintiff No.3)
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4) The aforesaid family tree would show the death of Bhagwandeen, who
is grand father of the plaintiffs and defendants, took place way back
on 25.10.1976. Bhagwandeen married twice. Surja Bai was the first
wife and Ganga Bai was the second wife. Both of them are dead.
Surja Bai had a son namely Pritam Lal who was defendant no.1 in the
suit. Pritamlal also died in 2014 during the pendency of the civil suit.
His first wife Sita Devi who was defendant no.5 in the suit died in
Sept. 2014 and second wife Kanti Devi who was defendant no.8 also
died in Dec. 2020. Preetam Lal had 3 sons from first marriage namely
Ramsanehi who was defendant no.2, Bharatlal (Defendant no.3) and
Pawanlal (Defendant no.4) and 5 daughters of Pretam Lal from first
marriage namely Saraswati, Shashi, Triveni Devi, Savitri Devi Smt.
Madhu were also arrayed as defendants 6, 7, 9, 10 and 11
respectively. During the course of trial Smt. Madhu, defendant no.11
died, as such, her legal heirs Prahlad Singh Chauhan, Kartik
Chouhan and Harshit Chouhan were brought on record as defendants
11-A, 11-B and 11-C respectively.
5) From second wife of Preetamlal namely Kanti Devi, son Shanker was
born who was plaintiff and during the pendency of the suit he died
thereby his legal heirs Smt. Sudha Singh (wife) Saksham Singh (son)
and Niyati Chauhan (Daughter) were arrayed as Plaintiffs 1(a), 1(b)
and 1(c) whereas daughters of Pritam Lal & Kanti Devi namely Smt.
Santoshi Devi , Saroj Devi, Pratima Devi and Smt. Priti were arrayed
as defendants 12, 13, 14 and 15 respectively.
6) It is not in dispute that on 08.09.1958 Bhagwandeen purchased land
bearing Kh.No.501/1 admeasuring 1.44 acres from Sheik Mohammad
and Iqbal Mohmed. The lands are situated at Juna Bilaspur.
Likewise, on 04.11.1963, another land of Kh.No.601 admeasuring
0.10 acres situated at village Juna Bilaspur was purchased. The land
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bearing Kh.614 admeasuring 0.04 acres at Juna was also purchased.
Likewise, Kh.No.500 admeasuring 0.057 acres at Juna was
purchased vide sale deed dated 04.11.1963 by Bhagwandeen thereby
the total land at Juna Bilaspur was comprised of 2.15 acres. Out of
2.15 acres, part of it was sold by Surja Bai and Bhagwandeen during
their lifetime and therefore, the suit property of 2 acres remained as
on the date of litigation. After death of Bhagwandeen in 1976, names
of his wife Surja Bai and Pritamlal were mutated in revenue records.
On 04.04.1971 Preetamlal relinquished his right and executed a deed
of relinquishment Ex.P-2 in favour of his mother Surja Bai. Thereafter,
the name of his mother Surja Bai was solely recorded in revenue
records. The plaintiff further pleaded that during the life time of Surja
Bai (first wife), Gangabai was made as second wife by Bhagwandeen.
On 22.09.1982 a partition was effected in between Surja Bai, widow of
Bhagwandeen, son Preetamlal and second wife Ganga Bai. It was
stated by the plaintiff that in respect of the lands situated at Juna
Bilaspur bearing Kh. Nos. 601, 614, 500, 501, those lands could not
be partitioned as Ganga Bai was not the legally wedded wife of
Bhagwandeen and pleaded that Ganga Bai would not get any right to
have a partition in such property.
7) The plaintiff further stated that with passage of time, defendant
Preetam Lal Loniya (since deceased) sold an area of 5850 sqft of
Kh.No.500, 501 on 02.12.1982. Subsequently on 08.03.1983 another
part and parcel of land 2460 sqft was sold and thereafter, an area
6050 sqft was sold on 09.03.1983 and lastly an area of 4441 sqft was
sold on 14.07.1983 to Ramayan Sharma,
8) The plaintiff further stated that Preetamlal Loniya being co-parcener
was not the sole owner could not have relinquished the entire land
and further the plaintiff pleaded the said property which was said to
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have bequeathed by a will by Surja Bai and Ganga Bai on 27.04.1987
by a registered will in favour of Ram Sanehi (D-2), Bharatlal (D-3) and
Pawanlal (D-4), the same could not have been given effect too as
Surja Bai and Ganga Bai were never acquired the ownership right
over the said lands.
9) The plaintiff further states that Shanker Loniya had earlier filed a Civil
Suit No. 85-A/2011 before the first Civil Judge, Class II, Bilaspur for
declaration and permanent injunction which was dismissed as
withdrawn with liberty to file afresh. The plaintiff pleaded that those
properties at Juna Bilaspur is a property of the joint Hindu family,
therefore, the Limitation Act would not apply for partition and
possession. However, since in the month of April, 2011 defendants 1
to 4 tried to dispossess the plaintiff, the cause of action arose.
Whereas, the suit property at Sirgitti Bilaspur and Ranigaon Tehsil
Ratanpur were self acquired property of Preetamlal.
10) The plaintiff further states that the property sold by Preetamlal should
be included in the share of the respondents and accordingly 1/15th
share was claimed by way of partition and separate possession.
11) The defendants 2 to 4 all sons of Preetamlal namely Ramsanehi (D-
2), Bharatlal (D-3) and Pawanlal (D-4) along-with daughters
Saraswati (D-6), Sahashi (D-7), Triveni Devi (D-9), Savitri Devi (De-
10) and Madhu (D-11) denied the allegations of the plaint. It was
stated that though the plaintiff pleaded that the property was co-
percenery property and the part of the land was sold to Ram Sharan
Sharma by 4 different sale deeds in 1982 and 1983, the purchaser
was not arrayed as a party to the suit. The defendants further stated
that claim for the entire suit property claiming partition and possession
by plaintiff Shankar Lal and defendants Santoshi Devi (D-12), Saroj
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Devi (D-13), Pratima Devi (D-14) and Priti (D-15) the daughters could
not be granted as they were not the legitimate off-spring of
Preetamlal, therefore, they would not get any right as Kanti Devi, the
mother of plaintiff was never legally married to Preetamlal.
12) On the basis of pleading, the learned Additional District Judge framed
six issues and held that the property at village Juna Bilaspur is the
ancestral property of plaintiffs and the defendants (both) whereas the
property of Tahsil Kota (Sub-Tahsil Ratanpur) and Mauja Sirigitti was
self-acquired property of Preetam Lal. Accordingly, the finding was
that after death of Preetam Lal, the plaintiff would be entitled to their
share and since some of the parties died during pendency of civil suit,
a decree for partition and possession to the extent of 1/13 was
allowed over all the 3 properties situated at Juna, Bilaspur; Ranigaon
Sub-Tahsil Ratanpur, Tahsil Kota and Mauja Sirigitti (Bilaspur). The
suit for partition and separate possession having been decreed in
favour of plaintiffs, the instant appeal has been preferred by the sons
and daughters who were born from first wife of Preetamlal namely
Sita Devi.
13) The learned counsel for the appellant/defendants would submit that it
is not disputed that plaintiff Shanker is son of Kanti Devi who was not
legally married to Preetamlal and the status of plaintiff along with his
sister could not have claimed for partition. He further submits that as
per The Hindu Succession Act 1956 after death of Bhagwandeen, two
widows namely Surja Bai and Ganga Bai both would get one unit of
share to be divided in between them along with son Preetamlal. He
further submits that after execution of relinquishment deed by
Preetamlal in favour of his mother Surja Bai (first wife of
Bhagwandeen), Surja Bai became absolute owner and Ganga Bai,
who also held a share along with Surja Bai as per Section 10 of the
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Hindu Succession Act, 1956 and they entered into family
arrangements by execution of partition deed whereby property of Juna
Bilaspur was partitioned amongst (i) Surja Bai, (ii) Ganga Bai & (iii)
Preetam Lal. It is further submitted that:-
i) by such partition Surja Bai got part of Khasra No.501/1, Kh. No. 500
& Kh. No.601, total area of 0.312 Hectares. It is further stated that
Surja Bai had sold part of land on 13/07/1984 to one Mulk Raj.
ii) Likewise, Ganga Bai got a land of Kh. No.501/1 & 500 total 0.256
Acres.
iii) By such partition, Preetam Lal got an area of Kh. No.500 & 501/1
total admeasuring 0.256 Acres. It is stated that Preetam Lal also
executed 4 (four) sale deeds in favour of Ramnarayan Sharma and
part of land remained which was in the name of Preetam Lal.
14) It is further stated that the rest of the owners of the land, Surja Bai and
Ganga Bai executed a WILL in favour of Ramsanehi, Bharat Lal and
Pawan Loniya. It is contended that the said WILL having been proved
by Ex. P/9, the entire property fell to the share of Ramsanehi, Bharat
Lal and Pawan Loniya after death of Ganga Bai on 22/12/1988 and
Surja Bai on 21/12/1990. It is submitted that the plaintiff cannot claim
any right in respect of properties of Juna Bilaspur. It is further
submitted that the parties to whom the part of properties were sold,
were not made party, as such the suit was liable to be dismissed for
non-joinder of parties.
15) He further submits that admittedly, Kanti Devi (second wife of
Preetamlal) , through whom the plaintiffs are claiming was not a
legally wedded wife and as per section 16(3) of the Hindu Marriage
Act, the right would only confine to properties of the parents and the
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child from void or voidable marriages would not get any right over
property of Juna Bilaspur. Therefore, granting right over the entire
property including that of co-parcenery property cannot be sustained
and thus the judgment of the court below is required to be interfered
as the parties would not get any right over the entire property. He
further submits that an application has also been filed under Order 41
Rule 27 CPC wherein the WILL dated 15 th November, 2013 is stated
to have been executed by Preetam Lal in favour of wife Sita Devi and
her sons thereby the property has devolved on them and those
documents may be taken on record as additional evidence. It is
stated that the said application along with copy of WILL requires
adjudication as it goes to the root of matter, which would decide the
right of the parties to hold the share and the documents may be taken
on record to hold that the property stands devolved on the propounder
to the exclusion of the other.
16) Per contra, learned counsel for the respondents would submit that
inference and scope of Section 96 of CPC in appeal would be a
limited one. He would submit that if the relinquishment was made by
Preetamlal in favour of his mother Surja bai, then how he can get back
by partition. Therefore, the transaction inter-se between the parties
would show the documents were created to defeat the legitimate right
of the parties. He would submit that for the sake of argument even if
the contention of the appellants are admitted about the legitimate
claim of the plaintiff, the same cannot be defeated as section 16(3)
gives legitimacy to the children and right over the property. He relied
on case laws reported in (2009) 15 SCC 184 (M. Yogendra Vs.
Leelamma N) and (2011) 11 SCC 1 (Revanasiddappa Vs.
Mallikarjun) and would submit that the plaintiffs were entitled to claim
a partition over the entire suit properties i.e. Juna Bilaspur, Sirgitti and
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of Mouja Rani Gaon, Tehsil Ratanpur. Therefore, it is stated that the
order of learned court below is well merited which does not call for any
interference.
17) Heard learned counsel for the parties. In the instant case, 3 sets of
properties are involved wherein the partition and separate possession
has been ordered by the trial Court. The suit properties comprises of
(i) Juna Bilaspur bearing Kh.No.501/1, Kh.No.500, 601 & Kh.614. It is
not in dispute that out of 2.15 acres, certain part of lands were sold by
Surja Bai and Bhagwandeen during their lifetime. According to the
evidence on record, after the property of Juna Bilaspur was partitioned
in between Surja Bai, Ganga Bai and Preetam Lal, some part of
property was also sold by Preetam Lal. So, the decree of partition &
possession to the extent of 1/13th has been passed over remaining
lands of Juna Bilaspur.
18) Indisputably, the property of Juna Bilaspur as per the evidence of the
plaintiff was purchased by Bhagwandeen in the years 1958 and 1963.
The land of Khasra No.501 admeasuring 1.44 acres was purchased
from Shaikh Mohamad & others on 09/09/1958 and Khasra No.601
admeasuring 0.10 acres was purchased on 04/11/1963 from Indira
Bai. According to PW-1, out of total land of 2.15 acres Surja Bai had
sold some part of land and only 2.00 acres land remains which is
described as suit land. Bhagwandeen had not executed any WILL
who died in 1976. According to the defendants, Bhagwandeen had
two wives namely Surja Bai and Ganga Bai. Therefore, on death of
Bhagwandeen the property would devolve to the Class-I heirs as per
Section 8 of HSA , 1956. For the sake of brevity the relevant part of
Section 8 & clause (a) of HSA, 1956 is reproduced hereunder.
“Section 8. General rules of succession in the
case of males.– The property of a male Hindu dying
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intestate shall devolve according to the provisions of this
Chapter–
(a) firstly upon the heirs, being relatives
specified in class I of the Schedule;”
19) The Class-I heirs of schedule since includes son & widow, the son
Pritam Lal and widows of Bhagwandeen, Surja Bai and other widow
would get the property. By virtue of Section 10 of HSA, 1956 Rule 1,
when there are two widows or more widows, all the widows will take
one share. For the sake of brevity relevant Section 10 & Rule 1 of
HSA, 1956 is reproduced hereinbelow:-
“Section 10. Distribution of property among heirs in
Class I of the Schedule.–The property of an intestate shall be
divided among the heirs in Class-I of the Schedule in
accordance with the following rules:-
Rule 1.- The intestate’s widow, or if there are more
widows than one, all the widows together,
shall take one share.
Rule 2.- The surviving sons and daughters and the
mother of the intestate shall each take one
share.
Rule 3.- The heirs in the branch of each pre-deceased
son or each predeceased daughter of the
intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in
Rule 3–
(i) among the heirs in the branch of the
pre-deceased son shall be so made that his
widow (or widows together) and the surviving
sons and daughters gets equal portions; and
the branch of his predeceased sons gets the
same portion;
(ii) among the heirs in the branch of the pre-
deceased daughter shall be so made that the
surviving sons and daughters get equal portions.”
So by virtue of applicability of it Preetam Lal would get a share along
with the two widows.
20) The suit was filed in the year 2012. In the array of parties, one of the
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appellants is shown to be of 40 years of age. Admittedly, death of
Bhagwandeen took place in the year 1976 and on that date of death
of original owner, one of the appellants Ramsanehi being his grand
son had already born. Therefore, the succession had opened. In a
consequence, the doctrine of equal ownership of father and son in the
ancestral property would be created. Ramsanehi being grandson of
Bhagwandeen shall have a right by birth in respect of properties of
Juna Bilaspur. Subsequently, after death of Bhagwandeen, the other
male issues were born to Preetam Lal.
21) Mitakshara co-parcenary carries a definite conception. It is a body of
individuals having been created by law unlike a joint family which can
be constituted by agreement of parties. A Mitakshara co-parcenery is
a creature of law. The Supreme Court in case of Hardeo Rai v.
Sakuntala Devi and others (2008) 7 SCC 46 (para 19) has
reiterated the principles laid down in S.B.I. Versus. Ghamandi Ram
(1969) 2 SCC 33 (SCC PP. 36-37, Para5) which reads as under:
“5. According to Mitakshara School of Hindu
Law all the property of Hindu Joint family is held in
collective ownership by all the coparceners in a quasi-
corporate capacity. The textual authority of the
Mitakshara lays down in express terms that the joint
family property is held in trust for joint family members
then living and thereafter to be born (see Mitakshara,
Chapter I, pp. 1-27). The incidents of coparcenership
under the Mitakshara Law are :
first, the lineal male descendants of a
person upto the third generation, acquire on birth
ownership in the ancestral properties of such
person;
secondly, that such descendants can at any
time work out their rights by asking for partition.
thirdly, that till partition each member has
got ownership extending over the entire property
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conjointly with the rest;
fourthly, that as a result of such co-
ownership the possession and enjoyment of the
properties is common;
fifthly, that no alienation of the property is
possible unless it be for necessity, without the
concurrence of the coparceners, andsixthly, that the interest of a deceased
member lapses on his death to the survivors. A
coparcenary under the Mitakshara School is a
creature of law and cannot arise by act of parties
except insofar that on adoption the adopted son
becomes a coparcener with his adoptive father as
regards the ancestral properties of the latter.”
22) The concept of Mitakshara shows that a son has right by birth in his
father’s and grandfather’s estate. In the ancestral or grandfather’s
property in the hands of the father, the son has equal rights with his
father while in the self-acquired property of father, his rights would be
unequal by reason of father having an independent power or
predominant interest in the same. The aforesaid principles is laid
down in case of C.N. Arunachala Mudaliar Versus C.A.
Muruganatha Mudaliar AIR 1953 SC 495. The relevant extract of
para 12 is reproduced hereunder:-
“(12) So far as the first ground is concerned, the foundation of
the doctrine of equal ownership of father and son in ancestral
property is the well known text of Yagnavalkya : vide
Yagnavalkya Book 2, 129 which says :
“The ownership of father and son is co-equal in
the acquisitions of the grandfather, whether land,
corody or chattel.”
It is to be noted that Vijnaneswar invokes this passage in
Chap. I Section.5 of his work, where he deals with the division
of grandfather’s wealth amongst his grandsons. The
grandsons, it is said, have a right by birth in the grandfather’s
estate equally with the sons and consequently are entitled to
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shares on partition though their shares would be determined
‘per-stripes’ and not ‘per capita.”
xxx xxx xxx xxx
“Excepting what is gained by valour, the
wealth of a wife and what is acquired by science
which are three sorts of property exempt from
partition.; and any “favour conferred by a father’.”
Chapter I, Section 4 of Mitakshara deals with effects not
liable to partition and property “obtained through the father’s
favour” finds a place in the list of things of which no partition
can be directed: vide section 4, placitum 28 of Mitakshara. This
is emphasised in sec. 6 of Chapter-I which discusses the rights
of posthumous sons or sons born after partition. In placitum 13
of the section it is stated that though a son born after partition
takes the whole of his father’s and mother’s property, yet if the
father and mother has affectionately bestowed some property
upon a separated son, that must remain with him. A text of
Yagnavalkya is then quoted that “the effects which have been
given by the father and by the mother belong to him on whom
they are bestowed” : vide Yagnavalkya 2, 124.
23) The evidence would show that Preetamlal (since deceased) son of
Bhagwandeen executed a relinquishment deed Ex.P/2 on 04/04/1977
in respect of his share. The relinquishment deed was in favour of his
mother Surja Bai. The property comprised in such relinquishment
deed is (i) Khasara No. 614 (ii) Khasara No. 500 (iii) Khasara No.
501/1 and 601 situated at Juna Bilaspur. It was for a total area of
2.05 Acres = 0.829 Hectares. The said relinquishment deed of entire
property was without the consent from other coparceners, the
grandson Ramsanehi, being minor represented by any next friend.
Therefore, though the relinquishment was executed in favour of Surja
Bai, the mother in respect of entire area of property solely by
Preetamlal, it would not create any right in favour of Surja Bai
exclusively of the undivided share of Preetamlal and which envelopes
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Page 16 of 35
the other share of Ramsanehi.
24) The question which would fall for consideration is as to whether the
entire relinquishment of share can be said to be nonest as Preetamlal
executed relinquishment deed over and above his part of share. In
order to find out the answer to the question, the principles laid down in
Murugan Vs. Kesava Gounder (dead) through Legal
Representatives (2019) 20 SCC 633 is followed wherein the
Supreme Court has quoted excerpts of Salmonds on Jurisprudence,
12th Edn., at Para 15 which reads thus:
“15. Salmonds on Jurisprudence, 12 th
Edn., has noticed the distinction between valid,
void and voidable in the following passage :
“…… A valid agreement is one
which is fully operative in accordance
with the intent of parties. A void
agreement is one which entirely fails
to receive legal recognition or
sanction, the declared will of the
parties being wholly destitute of legal
efficacy. A voidable agreement
stands midway between these two
cases. It is not a nullity, but its
operation is conditional and not
absolute.”
25) In Murugan case (supra) at para 24 the Supreme Court reiterated the
observations made in Gorakh Nath Dubey v. Hari Narain Singh (1973)
2 SCC 535 and held that a distinction can be made between cases
where a document is wholly or partially invalid so that it can be
disregarded by any court or authority and one where it has to be
actually set aside before it can cease to have legal effect. Therefore,
the alienation made in excess of power to transfer would be, to the
extent of the excess of power, invalid. Para 24 is relevant here and
quoted below :
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“24. We have noticed above that sub-section (3)
of Section 8 refers to a disposal of immovable property
by a natural guardian in contravention of sub-section (1)
or sub-section (2) as voidable. When a registered sale
deed is voidable, it is valid till it is avoided in accordance
with law. The rights conferred by a registered sale deed
are good enough against the whole world and the sale
can be avoided in case the property sold is of a minor by
a natural guardian at the instance of the minor or any
person claiming under him. A document which is
voidable has to be actually set aside before taking its
legal effect. This Court in Gorakh Nath Dube v. Hari
Narain Singh (1973) 2 SCC 535, while making
distinction between void and voidable document held :
(SCC p. 538, para 5″
“5. … We think that a distinction
can be made between cases where a
document is wholly or partially invalid so
that it can be disregarded by any court or
authority and one where it has to be
actually set aside before it can case to
have a legal effect. An alienation made in
excess of power to transfer would be, to
the extent of the excess of power, invalid.
An adjudication on the effect of such a
purported alienation would be necessarily
implied in the decision of a dispute
involving conflicting claims to rights or
interests in land which are the sub-matter
of consolidation proceedings. ……”
(Emphasis supplied)
26) By virtue of execution of relinquishment deed by Preetamlal in favour
of his mother Surja Bai, Surja Bai would not become absolute owner
in its entirety as Preetamlal could not have executed relinquishment
deed over and above his share as on the date of relinquishment, his
elder son Ramsanehi had born from first wife Sita Devi. Though the
revenue records filed as Ex.P-10 would show that the name of Surja
Bai stands recorded in revenue records, but it would not confer her
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Page 18 of 35
with absolute right of ownership in respect of the property situated at
Juna Bilaspur in view of the decision of the Supreme Court in
Municipal Corporation, Gwalior v. Puran Singh AIR 2014 S.C.
2669 wherein the Court held that Khasra entries do not convey title of
the suit property as the same is only relevant for the purposes of
paying land revenue and it has nothing to do with the ownership.
27) The evidence advanced would further show that Surja Bai
subsequently executed a partition deed on 22/09/1982, Ex.P-4, and
kept a share of 0.77 Acres herself and gave a share of 0.64 Acres to
Preetamlal and Ganga Bai, the second widow of Bhagwandeen. The
plaint averments shows that by 1982, other grandson namely Bharat
Lal Loniya had born and so as per plaint on calculating the same the
date of birth would be of approximately 1977 and for Pawan Lal
Loniya, approximate date of birth would be of 1980. They are the
grandsons of Bhagwandeen. Therefore, in respect of property at
Juna Bilaspur, the said property before partition would be an ancestral
property in their land of subsequent child born i.e., the grand-son who
came into being. In a result, by depriving the grandsons, division of
property by Surja Bai, Preetamlal and Ganga Bai would not confer
them with absolute right over and above their share in the property of
Juna Bilaspur. So by partition the respective share-holder would not
get specified share in the property of Juna Bilaspur.
28) Admittedly, the WILL was executed as proved as Ex.P-9 on
27/04/1987 whereby Surja Bai and Ganga Bai both bequeathed their
shares in the property bearing Khasara No. 614, 501/1, 501/1, 601/1
(admeasuring 0.72) & Khasara No. 614 (area 0.04 decimal) along with
superstructure & Khasra No. 500/3 & 501/4, (total area 0.64) which
was recorded in revenue records were bequeathed in favour of
Ramsanehi (D-2), Bharatlal (D-3) and Paramlal (D-4), their grandsons.
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The effect of WILL would be that according to the wish of the testator
the joint share held by both Surja Bai and Ganga Bai conferred on the
beneficiaries, the grandsons. Since, Ganga Bai died on 22/12/1988
and Surja Bai died on 21/12/1990, their extent of share in property at
Juna Bilaspur would devolve on their grandsons to the exclusion of
others as per case of Murugan (Supra). With the death of Surja Bai
and Ganga Bai, their entire undivided interests to the extent of their
entitlement would be devolved on their grandsons, the beneficiaries.
By such devolution of right in the property of Juna Bilaspur
Ramsanehi (D-2), Bharatlal (D-3) and Pawan Loniya (D-3) would
become the owners according to the last wishes of the testator in
respect of share of Ganga Bai and Surja Bai.
29) Another question comes to fore is what would be the entitlement of
plaintiff with respect to claim of personal share of property of
Preetamlal in Juna Bilaspur. The properties are comprised as the
ancestral property and secondly the self-acquired property at Village
Ranigaon and Sirgitti. In order to find out the answer the status of
plaintiff would be relevant, with respect to the family. With respect to
the properties at Juna Bilaspur, Preetamlal had already executed a
relinquishment deed (Ex.P-2) on 04/04/1977, thereby he divested
himself out of his holding i.e. personal share in respect of his part of
share in property in its entirety. So the question that arises for
consideration is whether the plaintiff can claim the right over the Juna
Bilaspur as co-parcener and as a son in personal self-acquired
properties at Ranigaon and Sirgitti.
30) The statement of P.W.1 would show that Preetamlal was married to
Sita Devi and during his life time without there being a separation or
divorce as per the Hindu Marriage Act in the year 1970 Preetamlal
married Kanti Devi. According to Section 5 of The Hindu Marriage
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Page 20 of 35
Act, the marriage may be solemnized between two Hindus on
fulfillment of condition that neither party has a spouse living at the time
of marriage. For the sake of convenience, the relevant portion of
section 5(i) of HMA 1955 is reproduced below:
“5. Conditions for a Hindu marriage. – A
marriage may be solemnized between any two Hindus, if
the following conditions are fulfilled, namely :-
(i) neither party has a spouse living at the time
of marriage;”
31) From the first marriage of Preetamlal with Sita Devi, 3 sons and 5
daughters were born namely Ramsanehi (D-2), Bharatlal (D-3) and
Pawanlal (D-4) and 5 daughters namely Saraswati (D-6), Shashi(D-7),
Triveni Devi (D-9), Savitri Devi (D-10) and Smt. Madhu (D-11) since
deceased now represented by legal heirs. Likewise, from “second
marriage” of Preetamlal with Kanti Devi, plaintiff-Shankar and four
daughters Santoshi Devi (D-12), Saroj Devi (D-13), Pratima Devi (D-14)
and Priti (D-15) were born. Since the plaintiff Shankar has died during
pendency of the suit, his legal heirs wife Sudha Singh, son Sasram
Singh and daughter Niyati were arrayed as Plaintiffs. In respect of
second marriage of Preetamlal with Kanti Devi, which took place in
1970, it cannot be held to be a valid marriage though children were born
out of such marriage i.e. the plaintiffs gets legitimacy. When the children
are born out of such void or voidable marriages, the status of legitimacy
is conferred by Section 16 of the Hindu Marriage Act, 1955. For the
sake of brevity, the entire section 16 is reproduced herein below :
“16. Legitimacy of children of void and voidable
marriages-(1) Notwithstanding that marriage is null and
void under section 11, any child of such marriage who
would have been legitimate if the marriage had been
valid, shall be legitimate, whether such child is born
before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), and whether or not
a decree of nullity is granted in respect of that marriage
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under this Act and whether or not the marriage is held to
be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a
voidable marriage under section 12, any child begotten
or conceived before the decree is made, who would
have been the legitimate child of the parties to the
marriage if at the date of the decree it had been
dissolved instead of being annulled, shall be deemed to
be their legitimate child notwithstanding the decree of
nullity.
(3) Nothing contained in sub-section (1) or sub-
section 2 shall be construed as conferring upon any child
of a marriage which is null and void or which is annulled
by a decree of nullity under section 12, any rights in or to
the property of any person, other than the parents, in
any case where, but for the passing of this Act, such
child would have been incapable of possessing or
acquiring any such rights by reason of his not being the
legitimate child of his parents.”
32) Though section 16 has conferred the legitimacy to the children, what
would be their right to the larger coparcenery has recently been laid
down by the the larger Bench of Supreme Court in case of
Revanasiddappa Versus Mallikarjun 2023 SCC OnLine SC 1087.
While laying down the law, the Court held that section 10 of the Hindu
Succession Act, 1956 which provides for distribution of property
among heirs in Class I of the Schedule. Section 10 of the HSA 1956
provides for the divisions of “the property of an intestate” among heirs
in Class I of the Schedule. The expression “property of an intestate”
means property that belongs to the intestate. The explanation to sub-
section (3) of Section 6 provides for the ascertainment of the interest
of a Hindu Mitakshara coparcener which is deemed to be the share in
the property that would have been allotted to him if a partition had
taken place immediately before his death. The Court further lays
down that share ascertained in terms of the Explanation to Sub-
section (3) of Section 6 would devolve on the basis of the principles
enunciated in Section 8 and has to be distributed among the Class-I
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2023:CGHC:24282-DBPage 22 of 35
heirs in terms of Section 10. Para 54 of the judgment is reproduced
herein below:
“54. Section 10 of the HSA 1956 provides for the
division of “the property of an intestate” among
the heirs in Class I of the Schedule. The
expression “property of an intestate” means
property that belongs to the intestate. The
Explanation to sub-section (3) of Section 6
provides for the ascertainment of the interest of a
Hindu Mitakshara Coparcener which is deemed to
be the share in the property that would have been
allotted to him if a partition had taken place
immediately before his death. That share as
ascertained in terms of the Explanation to sub-
section (3) of Section 6 would devolve on the
basis of the principles enunciated in Section 8
and has to be distributed among the Class-I heirs
in terms of Section 10. Class-I of the Schedule is
in the following terms :
“Son; daughter; widow; mother; son
of a predeceased son; daughter of a
predeceased son; son of a predeceased
daughter; daughter of a predeceased
daughter; widow of a predeceased son; son
of a predeceased son of a predeceased
son; daughter of a predeceased son of a
predeceased son; widow of a predeceased
son of a predeceased son; [son of a pre-
deceased daughter of a predeceased
daughter; daughter of a predeceased
daughter of a pre deceased daughter;
daughter of a predeceased son of a
predeceased daughter; daughter of a
predeceased daughter of a predeceased
son].”
33) At para 55, the Court further held that for the purpose of distribution of
property of deceased, Class I used the expression ‘son and daughter’.
Para 55 reads as under:
“55. For the purpose of the distribution of
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the property of the deceased, Class-I uses the
expression ‘son’ and ‘daughter’. The property
which falls for distribution is the share of the
deceased in the coparcenary property on the
basis of a notional partition having taken place
immediately prior to the death. The property to be
distributed is that of the deceased. The
explanation to sub-section (3) of Section 6
postulates that a notional partition has taken
place immediately prior to the death of the
coparcener and his interest is deemed to be the
share that would have been allotted to him in
such a partition. The legislature, in other words,
has provided for the ascertainment of the share of
the deceased on a notional basis. The
expression ‘share in the property that would have
been allotted to him if partition of the property had
taken place’ indicates that this share represents
the property of deceased. Where the deceased
dies intestate, the property would devolve in
terms of Section 8 and the distribution would be
governed by the Rules specified in Section 10.”
34) As has been laid down by the Supreme Court in case of
Revanasiddappa (supra), the Hindu Law recognises a branch of the
family as a subordinate corporate entity, within the fold of the larger
coparcenary comprising many such branches. However, even such
branches can acquire, hold and dispose of family property subject to
certain limitations. When Sections 16(1) & Section 16(2) of the HMA
confer legitimacy on children from void or voidable marriages, sub-
section (3) has circumscribed the extent of the right to or in property
that would be enjoyed by a person who has statutorily been conferred
with legitimacy under sub-sections (1) & (2). The Supreme Court
while interpreting section 16 in the above case (supra), at para 16
held as under:
“16. Section 16 was held to be intra vires. The
Court held that Section 16 enacts a legal fiction : by a
rule of ‘fictio juris’ the legislature has provided that
children, though “illegitimate”, shall nevertheless, be
treated as legitimate notwithstanding that the marriage
Neutral Citation
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was void or voidable. Interpreting the legal fiction in
Section 16, the Court in Kanapravan Kalliani Amma
(Smt) v K Devi (1996) 4 SCC 76 observed that
“illegitimate children, for all practical purposes, including
succession to the property of their parents have to be
treated as legitimate”. However, “they cannot…..
succeed to the properties of any other relation on the
basis of this rule, which in its operation, is limited to the
properties of the parents:
“82. In view of the legal fiction
contained in Section 16, the illegitimate
children, for all practical purposes,
including succession to the properties of
their parents, have to be treated as
legitimate. They cannot, however,
succeed to the properties of any other
relation on the basis of this rule, which in
its operation, is limited to the properties of
the parents.”
35) The Supreme Court in Revanasiddapa‘s case (supra) had further dealt
with the right of children born out of void marriage qua the
coparcenary right. Paras 59, 60, 64 & 71 would be relevant and are
quoted hereinbelow:-
59) We must clarify that it is true that
the Hindu Law recognises a branch of the
family as a subordinate corporate entity,
within the fold of the larger coparcenary
comprising many such branches. However,
even such branches can acquire, hold and
dispose of family property subject to certain
limitations. The nature of property held by
such a branch, until partitioned among the
members of the branch does not cease to be
that of a joint family property of all the
coparceners of the branch. Now, since the
child conferred with legitimacy under Section
16 is not a coparcener, the branch comprises
the father and his children born out of the
valid marriage. As such, the property, once
partitioned from the larger coparcenary, and in
the hands of the father, for his own branch, is
Neutral Citation
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not the father’s separate property, until the
partition happens within the branch. It
continues to be the coparcenary property in
which the children from his valid marriage
have joint ownership. Thus, in view of the
restriction in Section 16(3), in this property-
not being the exclusive property of the father-
a child covered by Section 16(1) and 16(2) is
not entitled.
60) The above legal position is supported by a
conjoint reading of Section 6, HSA and
Section 16, HMA as well. It is important to
notice that while Section 16(1) and Section
16(2) of the HMA confer legitimacy on
children from void or voidable marriages, sub-
section (3) has circumscribed the extent of the
right to or in property that would be enjoyed
by a person who has statutorily been conferred
with legitimacy under sub-sections (1) and (2).
Such an individual is not to possess any rights
in or to the property of any person other than
the parents. Hence, in working out the share of
such an individual who is entitled to the
benefit of the statutory conferment of
legitimacy by the two sub sections of Section
16, it is important to ascertain what exactly is
the property of the parent which comes up for
devolution by intestate succession under
Section 6(3) of the HSA 1956. Where the
parent is a Hindu Mitakshara coparcener, the
Explanation mandates that his share in the
property has to be ascertained on the basis of a
notional partition having taken place
immediately before his death. The share of the
Hindu male coparcener which is ascertained on
the basis of a notional partition immediately
before his death would be distributed among
his heirs in terms of Section 10 of the HSA
1956. The individual upon whom legitimacy
has been conferred by Section 16(1) or Section
16(2) of the HMA 1955 would be entitled to a
share in the property that would have been
allotted to their parent assuming a notional
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Page 26 of 35
partition immediately before the death of the
parent. Such a construction would be in
accordance with Section 6(3) and would
harmonise it with the provisions of Section
16(3) of the HMA 1955.
64) The interplay between the provisions of
Section 16(3) of the HMA 1955 and Section 6
of the HSA 1956 has been elaborately
discussed in an illuminating judgment of a
Division Bench of the Bombay High Court in
Shantaram Tukaram Patil v. Dagubai Tukaram
Patil. Justice R A Jahagirdar speaking for the
Division Bench observed:
“21……..We have already held above
that the legitimacy conferred by section
16 of the Hindu Marriage Act was there
even prior to the 1976 amendment. Only
it was extended to some more
persons.The Hindu Succession Act is no
doubt an Act which is later to the Hindu
Marriage Act. One must proceed on the
assumption that the Parliament was aware
of the provisions contained in section 16
of the Hindu Marriage Act, an earlier law
and despite this it-did not exclude the
children who were made legitimate under
section 16 of the Hindu Marriage Act
from the class of legitimate heirs under
the Hindu Succession Act. In fact one
would assume that if the Parliament
wanted to exclude the “legitimate
children” of section 16 of the Hindu
Marriage Act from the provisions of the
Hindu Succession Act, it would have
definitely provided for that effect. The
legitimacy, therefore, created by section
16 of the Hindu Marriage Act must be
read into as a part of the definition in
section 3(1)(j) of the Hindu Succession
Act. It would be unreasonable to suppose
that section 3(1)(j) would nullify the
effect of a provision contained in an
earlier Act when either by express words
or by necessary implication it does not do
so.”
71. The amendments have built upon the
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Page 27 of 35
structure of the HUF and calibrated it to
facilitate the legislative intent of bringing
about gender equality within the fold of
the institution. But the legislature has not
stipulated that a child whose legitimacy is
protected by sub-section (1) or sub section
(2) of Section 16 of the HMA 1955,
would become a coparcener by birth. On
the other hand, the express language used
in sub-section (3) of Section 16 of the
HMA 1955 is that the conferment of
legitimacy shall not be construed as
conferring any rights in or to the property
of any person other than the parents. As
we have already noted earlier, the very
concept of a coparcener postulates the
acquisition of an interest by birth. If a
person born from a void or voidable
marriage to whom legitimacy is conferred
by sub-sections (1) or (2) of Section 16
were to have an interest by birth in a
Hindu Undivided Family governed by
Mitakshara law, this would certainly
affect the rights of others apart from the
parents of the child. Holding that the
consequence of legitimacy under sub-
sections (1) or (2) of Section 16 is to place
such an individual on an equal\ footing as
a coparcener in the coparcenary would be
contrary to the plain intendment of sub-
section (3) of Section 16 of the HMA
1955 which recognises rights to or in the
property only of the parents. In fact, the
use of language in the negative by Section
16(3) places the position beyond the pale
of doubt. We would therefore have to hold
that when an individual falls within the
protective ambit of sub-section (1) or sub-
section (2) of Section 16, they would be
entitled to rights in or to the absolute
property of the parents and no other
person.
36) Following the principles cited above, there is no hesitation to hold that
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Page 28 of 35
though plaintiff was born out of void marriage of Kanti Devi and the
legitimacy of the children is protected by sub-section (2) of Section 16
of the Hindu Marriage Act, 1955, it cannot not be construed that any
right is accrued to them to claim the property of any person other than
the parents. Therefore, in respect of the co-parcenery property, the
plaintiff Shankar (since deceased) along with his sisters born from
Kanti Devi would not stand on equal footing of the other coparceners.
Consequently, the properties of Juna Bilaspur having not been
acquired by Preetamlal as a self-acquired property and having
relinquished his part of share, the plaintiff Shanker along with sisters
would not be entitled to claim for partition and separate possession in
respect of those properties.
37) With respect to property of Sirigitti and village Ranigaon Tahsil
Ratanpur as discussed above, the plaintiff Shankar (since deceased)
who was born out of second invalid marriage of Preetamlal with Kanti
Devi as also the daughters namely Santoshi Devi (D-12), Saroj Devi
(D-13), Pratima Devi (D-14) and Priti (D-15) who were born from such
second marriage would be conferred with the status of children as per
section 16 of the HMA, 1955 and they would be entitled to claim
partition in respect of parental property of Preetam Lal of Sirgitti and
Ranigaon. Therefore, the decree passed by the learned Additional
Judge quantifying 1/13th share of partition of each of the parties to
litigation which takes into sweep the property of Juna Bilaspur,
property of Ranigaon, Tahsil Ratanpur and property of Sirigitti cannot
be sustained and is liable to be set aside. Accordingly the finding to
the extent that the plaintiff and other shareholders are entitled for the
partition of 1/13th in the properties of Juna Bilaspur as also Sirgitti and
Ranigaon is liable to be interfered and accordingly, the finding to this
extent is set aside meaning thereby the decree for partition and
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separate possession in respect of properties at Juna Bilaspur to the
extent of 1/13 right of parties cannot be sustained.
38) An application has been filed under Order 41 Rule 27 of the CPC
before this Court wherein the copy of Will dated 15.11.2013 is
enclosed to show that the properties of Juna Bilaspur bearing
Kh.No.500/2 admeasuring 0.04 & Kh.No.501/3 area 0.17 = 21
decimals and properties of Mouja Sirgitti bearing Kh. Kh.
No.811/1Dha, 811/16, 812/1Ga, 813/1Ga/2, 813/1ga total land 0.03
acres and properties of village Ranigaon Kh.No.1757 area 0.87
decimals and the plot of Transport Nagar admeasuring 450 sqft which
were recorded in the name of Preetamlal have been bequeathed by
Preetamlal in favour of first wife defendants Sita Devi (since
deceased) and sons Ramsanehi, Bharatlal and Pawan Loniya. In the
aforesaid application filed under Order 41 Rule 27 before this Court,
a prayer has been made by the appellants to adduce additional
evidence in respect of the Will. The Supreme Court in Mahavir
Singh v. Naresh Chandra AIR 2001 SC 134 observed that Order 41,
Rule 27 CPC envisages certain circumstances when additional
evidence can be adduced. They are : (i) the Court from whose decree
the appeal is preferred has refused to admit evidence which ought to
have been admitted or (ii) the party seeking to produce additional
evidence, establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or could not,
after the exercise of due diligence, be produced by him at the time
when the decree appealed against was passed; or (iii) the appellate
Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other
substantial cause. The Court further held that the expression “to
enable it to pronounce judgment: contemplates a situation when the
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appellate Court finds itself unable to pronounce judgment owing to a
lacuna or defect in the evidence as it stands.
39) With respect to the property of Juna Bilaspur, it is no more res-integra
that legitimacy of children born out of void or voidable marriage would
not get any right except to that of parent. So leaving those properties
of Juna Bilaspur and following the law laid down by the Supreme
Court in Natha Singh Vs. The Financial Commissioner, Taxation
AIR 1976 S.C. 1053 the true test to be applied in dealing with other
properties i.e., of village Ranigaon and Sirgitti, is whether the
appellate court is able to pronounce judgment on facts and materials
before it, without taking into consideration the additional evidence
sought to be adduced.
40) At this juncture when we examine the application under Order 41 Rule
27 wherein it is stated that the suit property includes an old house
which is in possession of the appellants and 17 members were
residing in the said house which is about 80 years old and it is in
dilapidated condition and supporting part of it had become dangerous
for living and maintenance was being carried out to avoid the loss of
life or injury. However, because of objection raised by the
respondents, the appellants could not continue the repair works and
for want of maintenance, one wall of the house was collapsed on
20.04.2023 in mid-night due to heavy rain fall and the collapse of wall
gave way into the store room of deceased Preetam Lal Loniya and
while removing the debris, the appellants discovered an old storage
box containing several personal items of deceased Preetamlal
including old documents, Will, railway related ledger/ register , his
clothes, pen etc. , for which the Photographs have been attached. It is
stated that the Will dated 15.11.2013 came to fore which stresses
upon subject matter of the present suit and is a notarized document
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which was executed by Preetamlal whereby the entire property was
transferred in favour of his wife Sita Devi and her sons Ram Sanehi,
Bharatlal and Pawan Loniya. The copy of the Will is also placed as
Annexure D-2 for perusal. It is stated that subsequently they informed
this event to the police station, Tarbahar vide letter dated 21.04.2023
vide Ex.D-3. Therefore, they may be allowed to take the documents
especially the Will as additional evidence otherwise it would affect the
substantial right of the parties. It was further stated that the Will dated
15.11.2013 could not be produced as evidence before the trial Court
due to lack of knowledge of the appellants and they do not have
access to it.
41) In reply to the aforesaid application, the plaintiffs have stated that the
Will was never executed and the appellants have prepared the forged
document and in order to defeat the interest of plaintiffs which exists
in their favour by way of decree and the decree subsists after proper
appreciation of evidence.
42) After going through the contents of Will, it appears that if it is accepted
and found correct, it would have substantial effect to adjudicate the
right of parties. The Supreme Court in Jagdish Prasad Patel (dead)
through LRs Vs. Shivanath (2019) 6 SCC 82 while discussing the
provisions of Order 41 Rule 27 CPC laid down certain proposition that
when the evidence was not available to the party despite existence of
additional evidence and when the Court deems proper that the
additional evidence would be necessary to remove the cloud of doubt
over the case and the evidence has a direct and important bearing on
the main issue in the suit and interest of justice clearly renders it
imperative that it may be allowed to be permitted on record, such
application may be allowed. Paras 29 and 30 are relevant and
produced herein below:
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“29. Under Order 41 Rule 27 CPC, production of
additional evidence whether oral or documentary, is
permitted only under three circumstances which are :
(i) Where the trial Court had
refused to admit the evidence though it ought
to have been admitted ;
(ii) the evidence was not
available to the party despite exercise of due
diligence; and
(iii) the appellate Court required
the additional evidence so as to enable it to
pronounce judgment or for any other
substantial cause of like nature.
An application for production of additional
evidence cannot be allowed if the appellant was not
diligent in producing the relevant documents in the
lower court. However, in the interest of justice and
when satisfactory reasons are given, the court can
receive additional documents.
30. In Union of India v. Ibrahim Uddin (2012) 8
SCC 383, this Court held as under : (SCC pp. 167-168 &
170 Paras 36-37, 40 & 47)
36. The general principle is that the appellate
court should not travel outside the record of the lower
court and cannot take any evidence in appeal. However,
as an exception, Order 41 Rule 27 CPC enables the
appellate court to take additional evidence in exceptional
circumstances. The appellate court may permit
additional evidence only and only if the conditions laid
down in this Rule are found to exist. The parties are not
entitled, as of right, to the admission of such evidence.
Thus, the provision does not apply, when on the basis of
the evidence on record, the appellate court can
pronounce a satisfactory judgment. The matter is
entirely within the discretion of the court and is to be
used sparingly. Such a discretion is only a judicial
discretion circumscribed by the limitation specified in the
Rule itself. (Vide K. Venkataramiah v. A. Seetharama
Reddy AIR 1963 SC 1526, Municipal Corpn., Greater
Bombay v. Lala Pancham AIR 1965 SC 1008, Soonda
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Page 33 of 35
Ram v. Rameshwarlal (1975) 3 SCC 698 and Syed
Abdul Khader v. Rami Reddy (1979) 2 SCC 601.).
37. The appellate court should not ordinarily
allow new evidence to be adduced in order to enable a
party to raise a new point in appeal. Similarly, where a
party on whom the onus of proving a certain point lies
fails to discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the court can, in
such a case, pronounce judgment against him and does
not require any additional evidence to enable it to
pronounce judgment. (Vide Haji Mohammed Ishaq v.
Mohd. Iqbal and Mohd. Ali & Co. (1978) 2 SCC 493.
* * *
40. The inadvertence of the party or his inability
to understand the legal issues involved or the wrong
advice of a pleader or the negligence of a pleader or that
the party did not realize the importance of a document
does not constitute a “substantial cause” within the
meaning of this Rule. The mere fact that certain
evidence is important, is not in itself a sufficient ground
for admitting that evidence in appeal.
47. Where the additional evidence sought to be
adduced removes the cloud of doubt over the case and
the evidence has a direct and important bearing on the
main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record, such application may be allowed.”
43) A perusal of the application and the documents annexed thereto would
shows that the photographs have been attached along with a report
made to the Police station to show that the house of their father in
which the appellants were residing was very old and the mud wall of
store room was collapsed and while cleaning the debris, they found
the box of their father in which the old documents, Will, ledger books
written by him, his clothes, pen etc., were found. Further perusal of
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the Will would show that the suit property which includes the
properties of Juna Bilaspur and Sirgitti; and village Ranigaon Sub-
Tahsil Ratanpur have been bequeathed in favour of the sons and wife
of Preetamlal.
44) The Will is of dated 15th November 2013. Prima facie reading of the
Will would show that it has direct and important bearing on the main
issue to pronounce the judgment on merits. If the authenticity of the
Will is adjudicated it will have effect on the rights of the parties in
respect of the properties for which parties are litigating. The Will is
required to be proved under the provisions of The Hindu Succession
Act and The Indian Evidence Act. Therefore, the evidence would be
required to prove the Will in accordance with law, as the Will cannot
be accepted to be an authenticate one on mere production.
Accordingly, the application under Order 41 Rule 27 is allowed.
45) Since the finding of the trial Court is set aside with respect to 1/13th
share of property in its entirety, we hold that the plaintiff is not entitled
to claim partition in respect of the properties at Juna Bilaspur being
co-parcener. Before any finding is given in respect of properties at
Ranigaon and Sirgitti as the application under Order 41 Rule 27 has
intervened whereby the personal properties of Preetam at Sirgitti and
Ranigoan have been conferred by way of bequest in favour of first
widow of Preetamlal namely Sita Devi ( since deceased) and their
sons Ramsanehi (D-2), Bharatlal (D-3) and Pawan Loniya (D-4),
which would have a material bearing on the rights of the parties, we
deem it proper to send back the records of Court by which decree is
passed to take evidence on Will and then send it to this Court back to
record a finding in respect of Will and its effect.
46) In view of the foregoing discussion, the appeal is partly allowed and
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records are send back to the trial Court to record its finding on Will
produced before this Court.
(i) The plaintiffs would not be held entitled to claim
partition and possession of the properties
purchased by Bhagwandeen bearing Kh. Nos. 500,
501/1, 601, 614 situated at Juna Bilaspur.
47) Accordingly, with the aforesaid findings and direction, the case is
remitted back to the learned trial Court for adjudication on the validity
of Will and send its finding on Will after giving the parties due
opportunity to amend the pleadings and adduce evidence touching
the Will and remit back the finding.
48) The Registry is directed to remit back the records to the trial Court in
terms of the observation made above. The parties shall appear
before the trial Court on 09.11.2023.
Sd/- Sd/-
(Goutam Bhaduri) (Sanjay S. Agrawal)
Judge Judge
Rao
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