Balwant & Others vs Vishnu Dayal

Hari Nath Tilhari, J.—This is defendant''s second appeal arising out of the judgment and decree dated 22978 passed in Civil Appeal No. 103 of 78 arising out of judgment and decree dated 29378 passed by Shri M.H. Khan, III Additional Munsif, Hardoi in Regular Suit No. 35 of 74 Vishun Dayal v. Balwant bothers. The facts of the case, in brief, could be stated as under.

The plaintiffrespondent had filed a suit for permanent injunction restraining the defendants from interfering with the plaintiff''s possession over the house in dispute, more specifically described in the plaint and in alternative the plaintiff had prayed for a decree for partition claiming his share to be 3/4th against the defendants. According to the plaintiff''s case one Parsadi @ Narpat residing at village Agaulapur Pergana Gopa Mau, Tehsil and district Hardoi was the owner of a house more specifically described in the plaint and the siteplan attached thereto and situated in the aforesaid village Agaulapur, Pergana Gopamau, Tehsil & district Hardoi. The plaintiff further alleged that the aforesaid Parsadi alias Narpat had two sons Brij Lal and Bhudhar and on the death of Parsadi aforesaid his two sons succeeded to the interest of Parsadi and be came owner in possession thereof as heirs. The plaintiff has further alleged that Bhudhar had died and the widow of Parsadi Smt. Rajwati Devi became his heir. The plaintiff has further alleged that Bhudhar had a son Atma Ram who died during the life time of Bhudhar whose widow was Smt. Munni Devi. The plaintiff further alleged that Smt. Munni Devi, widow of Atma Ram during the lifetime of Bhudhar remarried by system of Gharauna with one Natthu of village Agaulapur. The plaintiff further asserted that Brij Lal son of Parsadi and Smt. Rajwati widow of Parsadi by a registered sale deed dated 11673 transferred by sale for a consideration of Rs. 2,500 their share and interest in the house in dispute, demarcated by letter ka kha Ga Gha in the site plan attached to the plaint. It may be clarified here that by expression ka kha Ga Gha in the siteplan the entire house has been described in the plaint. According to the plaintiff on the basis of the sale deed dated 11673 executed by Brij Lal and Smt. Rajwati Devi, the plaintiff entered into possession of the house in dispute referred to in the plaint. The plaintiff has also alleged in the plaint that on Bhudhar''s death, interest of Bhudhar in the house in dispute was also inherited by Bhudhar''s mother Smt. Rajwati Devi widow of Parsadi and that according to plaintiff''s case the plaintiff has purchased the entire house in dispute vide sale deed dated 11673 and entered into the possession thereof as owner thereof. The plaintiff further alleged that defendants 1 and 2 are real brother and defendants 3 and 4 who are the sons of defendant no. 2 all of them threatened to illegally and forcibly interfere with the plaintiff''s possession over the house in dispute. The plaintiff in the plaint has further stated that defendant no. 1 alleges that he has purchased the house in dispute from Smt. Munni Devi but Smt. Munni Devi has no interest, right or share in the said house and she had no right to make transfer of the same in favour of defendant no. 1, and, as such, according to plaintiff''s case the sale deed if any, has been executed by Smt. Munni Devi of the house in dispute in favour of defendant no. 1 the said sale deed is illegal, null and void. In the alternative in paragraph 17 of the plaint it has been stated that in any case even if Smt. Munni Devi is found to be entitled to any share in the property and to make transfer thereof then in that case her interest cannot be more than 1/4th in the house in dispute. The plaintiff, as such, on the basis of above allegations and cause of action has filed the suit giving rise to this appeal for the relief''s already mentioned above.

The defendants contested the Plaintiff''s case, filed written statement and in accordance with the defendant''s case the house in dispute did not belong to Panadi. According to defendants'' case neither Parsadi nor Brij Lal nor Smt. Rajwati have been the owners in possession of the said house at anytime. According to the defendants'' case Bhudhar after having separated from Bhudhar, after the death of Parsadi constructed the house in dispute and he was sole owner thereof. The defendants further asserted that Bhudhar had died some eight years earlier and the house in dispute was inherited by his son Atma Ram and in 1973 Atma Ram committed suicide and Smt. Munni Devi, widow of Atma Ram inherited the said house being the exclusive heir of Atma Ram and she was in possession. The defendants furthers asserted that Smt. Munni Devi did not enter into any remarriage in any form with any one. It was also asserted that Smt. Rajwati Devi, widow of Parsadi had also died several years earlier. The defendants asserted that Smt. Munni Devi, widow of Atma Ram vide sale deed dated 9573 transferred as the exclusive owner of the house i.e. the entire suit property in favour of defendant no. 1 and since then the defendant no. 1 is the owner. The defendants denied the plaintiff''s possession over the house in dispute. The plaintiff had filed replication and on the basis of the pleadings of the parties the learned trial court framed the following issues:

Whether the plaintiff is the owner in possession of the suit property?

Whether Brijlal and Smt. Rajwati were the owners of the property in dispute and did they on 11663 execute a registered sale deed in favour of the plaintiff? If so, its effect?

Whether Smt. Manni Devi, widow of Atma Ram was the sole and exclusive owner of the house in dispute and did she on 9573 execute a registered sale deed in favour of defendant no. 1? If so, its effect?

Is defendant no. 1 owner of the property in dispute ?

Did Smt. Munni Devi remarry ? If so, its effect?

Whether Smt. Rajwati is not the widow of Parsadi? If so, its effect ?

To what relief, if any, is the plaintiff entitled ?

The learned trial court after having considered the evidence of the parties has held that the house in dispute belonged to Bhudhar and it did not belong to Parsadi. Bhudhar was its sole owner. On Bhudhar''s death Atma Ram son of Bhudhar and widow of Bhudhar Smt. Dharma and mother of Bhudhar Smt. Rajwati succeeded to the said property in equal shares. He further held that on the death of Atma Ram and Smt. Dharma i.e. son and widow of Bhudhar their interest i.e. 1/3 each was inherited by Smt. Munni Devi, widow of Atma Ram and Smt. Munni Devi''s share itself became 2/3. He further held that Smt. Rajwati was entitled to 1/3 share and on this basis the learned trial court further held that as Smt. Rajwati had transferred her interest in the property in dispute vide sale deed dated 11673 in favour of the plaintiff the plaintiff''s share is 1/3, while Smt. Munni Devi having transferred her entire interest in the property in dispute in favour of defendant no. 1 vide sale deed dated 9573 defendant no. 1 became entitled to 2/3 in the house in dispute. He further held that Smt. Munni Devi did not remarry and had found the allegation made in the plaint to that effect to be incorrect. After having thus considered and recorded findings the learned trial court held the plaintiff to be entitled to a decree for partition of 1/3 share in the house in dispute, and, as such, instead of granting a decree for permanent injunction decreed the plaintiff''s suit for partition of plaintiff''s 1/3 share as held by it. Having felt aggrieved from the judgment and decree of the trial court dated 29378 the plaintiff filed an appeal under section 96 of the Code of Civil Procedure namely, Civil Appeal No. 103 of 78 and the defendant, preferred cross objections under Order 41 Rule 22 of the Code. Learned lower appellate court after having heard the learned counsel for the parties allowed the plaintiff''s appeal partly and dismissed the defendants'' cross objection by judgment and decree dated 22978. The learned lower appellate court upset the finding of the trial court as regards the ownership of the house in dispute. It held that Parsadi was the owner of the disputed house. He further held that plaintiff was the owner of 1/3 share in the house in dispute. Smt. Rajwati was the widow of Parsadi. The learned lower appellate court further held that there was no dissolution of the marriage of Smt. Munni Devi with Atma Ram during the life time of Atma Ram. He further held that Atma Ram had died during the life time of Bhudhar. He further held that Bhudhar''s 1/3 share on his death was succeeded and inherited by Bhudhar''s mother Smt. Rajwati and Smt Munni Devi equally. Thus share of Smt. Munni Devi in the property in dispute was 1/6th i.e. 1/2 of the share of Bhudhar which was only 1/3in the suit property as on the death of Parsadi the house in dispute was inherited and succeeded by Brij Lal, Bhudhar and Smt. Rajwati, widow of Parsadi equally i.e. 1/3 each. Having thus considered, the learned lower appellate court held that defendant no. 1 vide sale deed dated 9573 had purchased from smt. Munni Devi what belonged to her as her share i.e. 1/6th share in the house in dispute. He further held that the remaining 5/6th share did belong to Brij Lal and Smt. Rajwati i.e. son and widow of Parsadi, who in their turn had transferred vide registered sale deed dated 11673 their entire interest in favour of the plaintiff respondent and thus plaintiff''s share was 5/6th in the suit property. The lower appellate court (Civil Judge) modified the trial court''s decree to this extent the share of the plaintiff in the house in dispute was not 1/3 but 5/6th while the share of Smt. Munni Devi which she had transferred in favour of defendant no. 1 appellant Balwant Singh was only 1/6th and so held the defendant no. 1 to be entitled to 1/6th only which the defendant no. 1 had purchased in the disputed house under the sale deed executed by Smt. Munni Devi in favour of defendant no. 1 appellant. The learned lower appellate court affirmed the decree for partition of the trial court with these modifications that plaintiff is granted decree for partition in respect of his 5/6th share in the house in dispute with costs and ordered the preliminary decree to be prepared accordingly.

Feeling aggrieved from the decree of the lower appellate court dated 22978 the defendants have preferred the second appeal under section 100 of the Code of Civil Procedure. The scope of jurisdiction of this court which is to be taken note of is confined in the matters of second appeal under section 100 of the Code to substantial questions of law and as framed in the memo of appeal or by the court. It is not open to this court under section 100 of the Code to interfere with the findings of fact pure and simple howsoever erroneous it may be.

I have heard the learned counsel for the appellants Shri Pradeep kant assisted by the brief holder Shri Shyam Mohan. Learned counsel for the appellants submitted that the finding to the effect that the house in dispute did not exclusively belong to Bhudhar and that Parsadi was the owner thereof have been erroneous. The finding of the court below is to this effect on consideration of evidence that the house in dispute did not belong to Bhudhar and defendants failed to prove that it was constructed by Bhudhar. The court below relied on the oral and circumstantial evidence and held the house to be one belonging to Parsadi, father of Bhudhar and Brij Lal. This finding is a pure finding of fact. It is well settled principle of law as regards findings of fact that a finding of fact howsoever erroneous even grossly erroneous it may be it cannot be interfered with in exercise of jurisdiction under Section 100 of the Code of Civil Procedure until and unless it can be shown and proved that the finding suffers from error of law or substantial error of law for illustration if the finding has been arrived at after having made out a new case not pleaded by the parties or it has been arrived at after ignoring certain material and relevant evidence without any rhyme or reason or courts below have relied, upon certain piece of inadmissible evidence and the like. In the present case no such illegality or error of law in the above finding has been shown by the learned counsel for the appellants. In this view of the matter, it is not open to this court to interfere with that finding of fact and the said finding is binding on this court.

Learned counsel for the appellant next contended that Smt. Rajwati was not the widow of Parsadi and that she was not entitled to any share. The two courts below have concurrently held on the basis of consideration of evidence on record that Smt. Rajwati was the widow of Parsadi, the finding being one of concurrent finding of fact having been recorded by the two courts below the same principle will apply to this finding as has been mentioned above with reference to the ownership of the house. The finding having been pure finding of fact and having been concurrently recorded after consideration of material on record by the two courts below and no illegality or error of law having been indicated which may be said to vitiate those findings and the said findings are binding and no interference can be made with the same. Learned counsel for the appellants further submitted that the share of Smt. Munni Devi could not be 1/6th and the court below had erred in holding the same. The extent and quantum of share can be question of law but in the present case I find that when it has been held that the house in dispute did belong to Parsadi and on his death it was inherited by his widow and his two sons equally i.e. by Brij Lal, Bhudhar and widow of Parsadi Smt. Rajwati. The share of Bhudhar remained 1/3 while 2/3 share was inherited by two other heirs i.e. Brij Lal and Smt. Rajwati equally. Bhudhar''s share having been only 1/3 at the time of Bhudhar''s death and there were two persons, namely, mother of Bhudhar Smt. Rajwati and widowed daughterinlaw of Bhudhar Smt. Munni Devi. Learned counsel tried to urge that widowed daughterinlaw Smt. Munni Devi ought to have been held to be entitled to atleast entire 1/3 share belonging to Bhudhar. I find no substance in that contention. Under the provisions of Hindu Succession Act, 1956 so far as nonagricultural property is concerned it is provided that on the death of a male Hindu, intestate his property and interest in property shall devolve firstly on the heirs specified in Class I of the Schedule. Here it may be pointed out that as per schedule widowed mother and the widow of a predeceased son stand on the same footing and they are the heirs of Class I of the schedule and they have been mentioned as such. Section 9 of Hindu Succession Act, 1956 further provides that heirs of Class I shall take simultaneously to the exclusion of other heirs and thereafter it provides the order of succession. Section 9 reads as under:

�9. Order of Succession among heirs in the Schedule, Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and soon in succession.�

Reading section 8 along with section 9 and Class I entries of the Schedule, I am of the opinion that the learned lower court did not commit any error of law or jurisdiction in holding that mother of Bhudhar and widow of predeceased son of Bhudhar shall succeed simultaneously and in holding that 1/3 share in the house in dispute belonging to Bhudhar shall devolve equally on both and thus Smt. Munni Devi inherited 1/6th share in the property in dispute while remaining 1/6 share was inherited by Bhudhar''s mother Smt. Rajwati. Thus, there appears no error of law or substantial error of law in the judgment and decree of the flower appellate court. Lastly, learned counsel for the appellants submitted that the plaintiff had claimed only 3/4th share and partition thereof in alternative and, therefore, the decree for partition which has been passed for 5/6th suffers from error of law as it goes beyond what the plaintiffrespondent had claimed. What will be the share of a party is a pure question of law and it is to be determined on the basis of law applicable to the facts of the case, so it cannot be said to be a pure question of law to go in favour of appellant as such, the plaintiff cannot be deprived of his legal valid share which he is entitled under law, and, as such, there is no question of this plea being barred by estoppel, estoppel does not operate against law. No other point has been pressed in arguments.

Thus consider, the appeal is devoid of merit and is hereby dismissed. Costs of second appeal is made easy.

(Appeal dismissed.)