Dharmendra Singh Yadav vs Shivratan Singh <BR> Shivratan Singh Vs Dharmendra Singh Yadav

This judgment shall govern disposal of F.A. No. 90/2005 and 090/2005 as both these appeals are directed against the common judgment and decree dated 29/11/2004 passed by learned 9th Additional District Judge (Fast Track Court), Gwalior in Civil Suit No. 9-A/2003. First Appeal No. 90/2005 is directed by original plaintiff; whereas, First Appeal No. 96/2005 is filed by defendants No. 2,3 and 4.

Facts necessary for disposal of this appeal are to the effect that plaintiff-Shivratan Singh filed a suit for declaration and permanent injunction inter alia contending that the suit properties (agricultural lands) as mentioned in para 1 of the impugned judgment situated at village Sirol, Pargana and District Gwalior are ancestral properties and after the death of father Harnam Singh, same shall devolve upon his three sons namely Shivratan (plaintiff), Dayashankar (defendant No. 3) and Ramcharan (defendant No. 4) and widow of Harnamsingh namely Kosabai shall have only 1/6 share of 1/4 share of Late Harnamsingh as per the Hindu Laws. Therefore, sale deed dated 14/7/1997 allegedly executed by the widow of Harnam Sigh in favour of defendant No. 2 Dharmendra Singh, who is son of one of brothers, Ramcharan (defendant No. 4) to the extent of 1/4 of the total properties is bad in law and therefore, be declared as null and void and for permanent injunction.

Defendants filed written statement denying the plaint allegations.

On the basis of aforesaid pleadings of the parties, trial Court framed issues and allowed parties to lead evidence. Trial Court upon critical evaluation of the evidence on record, recorded a finding that as a matter of fact, the suit property is a property in the hands of Harnamsingh as a self acquired property and after death of Harnamsingh shall devolve upon his heirs as per Section 8 of the Hindu Succession Act. Consequently, trial Court decreed the suit to the effect that the sale deed executed by Kosabai in favour of defendant No. 2 dated 14/7/1997 shall be valid to the extent of her 1/6 share and not beyond that. However, relief of permanent injunction was denied.

Being aggrieved by the aforesaid judgment and decree, plaintiff has filed F.A. No. 90/2005, whereas, F.A. No. 96/2005 has been filed by defendants No. 2,3 and 4.

After arguing for a while, counsel for the appellant in F.A. No. 90/2005 fairly conceded that it is true that for want of evidence, findings of trial Court that suit property is not an ancestral property can be sustained and consequently, after death of Harname Singh, the property shall devolve upon his heirs as per Section 8 of Hindu Succession Act. It is submitted that trial Court however has committed an error of law having refused permanent injunction against defendant No. 2 as by the impugned sale deed dated 14/7/1997, defendant No. 2 has claimed to have purchased undivided share of Late Kosabai in the Joint Hindu Family property, therefore, he cannot either claim or ask possession over the suit property without filing suit for partition. Hence, trial Court committed an error of law having refused the relief of permanent injunction.

On the other hand, counsel for appellants in F.A. No. 96/2005 assailed the impugned judgment on the premise that trial Court has committed an error of law and fact having held that suit property is a self acquired property of Harnam Singh and is not an ancestral property. It is further submitted that in absence of any suit being filed by daughters of Late Harnam Singh, the trial Court could not have declared their share in the suit property applying the principle of succession of Joint Hindu Family Property of Male Hindu died intestate , as provided for under Section 8 of Hindu Succession Act. Trial Court ought to have held the property as ancestral property and therefore, his widow Kosibai had 1/4 share therein in respect whereof the impugned sale deed dated 14/7/1997 was executed in favour of defendant No. 2.

Learned counsel for the appellants in F.A. No. 96/2005, however has not been able to substantiate his submissions as regard the nature of property as ancestral property and the findings recorded by the trial Court that the suit property was a self acquired property of Late Harnam Singh, which in the opinion of this Court is based on proper appreciation of cogent evidence available on record and resultantly does not warrant interference.

The law as regards devolution of property after the death of father by way of intestate succession under Section 8 of Hindu Succession Act is well settled by an authoritative pronouncement of Hon. Apex Court in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, . Relevant paragraphs 14, 19 and 20 of the aforesaid judgment reads as under:-

�14. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father''s property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him. But the question is; is the position affected by section 8 of the Succession Act, 1956 and if so, how? The basic argument is that section 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.

It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son''s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court''s view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-�-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-�-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.�

Bearing in mind the principle of law settled by Hon. Apex Court in the aforesaid case, the trial Court was justified having applied Section 8 of the Hindu Succession Act in the matter of devolution of suit property upon the heirs of Harnam Singh, which was necessary for addressing the issues as to whether the sale deed dated 14/7/1997 executed by Late Kosibai in favour of defendant No.2 to the extent of 1/4 of suit property was legal and proper or not ? Trial Court therefore, was fully justified having held that the aforesaid sale deed was valid to the extend of 1/6 share of suit property.

Now, we come to the question of grant of permanent injunction against defendant No. 2 not to interfere with the possession of appellant in F.A. No. 90/2005 over the suit property. Appellants have contended that defendant No. 2 has no right to claim possession over the suit property by virtue of aforesaid sale deed unless he files a suit for partition of Joint Hindu Family Property claiming undivided share of Late Kosabai and possession. However, counsel for defendants tried to justify the same on the basis of sale deed, which has been held to be bad in law to the extent of beyond 1/6 of total suit property. It is a settled law that a purchaser of an undivided share in the property of Hindu Joint Family, cannot claim possession unless, he files a suit for partition. Hence, the prayer as made by appellants in F.A. No. 90/2005 appears to be reasonable. Accordingly, the decree passed by trial Court is modified to the extent that defendant No. 2 shall not interfere with the possession of appellants in F.A. No. 90/2005, unless the same is decreed by the Court of competent jurisdiction in the suit for partition to the extent of right of defendant No. 2 as hereinabove stated by virtue of sale deed dated 14/7/1997. Accordingly, appeal No. 90/2005 is allowed to the extent indicated herein above. Consequently, Appeal No. 96/2005 is dismissed as bereft of merits. Decree be prepared accordingly. No order as to costs.