Jai Bhagwan vs Saroj Devi and others

M.M. Kumar, J.—This is defendant''s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, `the Code'') challenging concurrent findings of facts recorded by both the Courts below. It has been held that the plaintiffrespondents are coowners in possession of 1/5th share of the suit property and they are also entitled to get their share separated by way of partition. It has further been held that the family settled dated 29.6.1989 is illegal and void document and the defendantappellant cannot be considered as exclusive owner.

Brief facts of the case which have led to the filing of the instant appeal are that on 24.3.1981 the defendantappellant along with defendantrespondents 3 to 5 and one Ram Kumar (husband of plaintiffrespondent 1 and father of plaintiffrespondent 2) purchased 180.8 square yards of land in equal shares i.e. 1/5th share each. Thereafter, they jointly raised construction of a shop and a flat on it. In the year 1988 Ram Kumar died. Plaintiffrespondent 1 Saroj Rani and plaintiffrespondent 2 Puja are the wife and daughter of deceased Ram Kumar. After the death of Ram Kumar plaintiffrespondents 1 and 2 being the sole successors of Ram Kumar claimed 1/5th share. Therefore, they filed a suit for declaration to the effect that they are owners in possession of 1/5th share and also prayed for possession of their share by effecting partition of the joint property.

The defendantappellant and defendantrespondents 3 to 5 set up the plea that there is a family settlement dated 29.6.1989 and the suit property has been given to the defendantappellant. It was further asserted that plaintiffrespondent 1 was present at the time of family settlement and duly signed the same. It was alleged that the defendantappellant has raised construction of the shop and flat at his own expenses and the husband of plaintiffrespondent 1 did not make any contribution. On the basis of pleadings of the parties, two crucial issues were framed which are as follows :

Whether the plaintiffs are owner in possession of 1/5th share of property in dispute being legal heirs of deceased Ram Kumar son of Surjit ? If so, its effect ? OPP

Whether the plaintiffs are entitled to decree for partition of the demised premises along with its meane [sic ? mesne] profits since 1988 to upto date ? OPP

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On both the issues, the findings recorded by the trial court are that plaintiffrespondents 1 and 2 are the sole legal heirs of deceased Ram Kumar and the family settlement dated 29.6.1989 is illegal and void document and the defendantappellant cannot be considered to be the exclusive owner in possession. It has further been held that plaintiffrespondents 1 and 2 are coowners in possession to the extent of 1/5th share and they are entitled to get their share separated by way of partition.

The Appellate Court also upheld the findings that the property was self acquired property in the hands of Ram Kumar the husband and father of plaintiffrespondents 1 and 2 respectively. It has further been held that the total sale consideration of Rs. 42,500/ was paid on 24.3.1981 by them. With regard to family settlement dated 29.6.1989 propounded by the defendant appellant, the Appellate Court reached the conclusion that the same was the result of fraud and misrepresentation and observed as under :

"Another aspect of this case that learned trial court has rightly come to the conclusion that plaintiffs have been able to prove on the basis of evidence that she put her signatures under some undue influence and mis representation, after the death of her husband. For that purpose, Smt. Saroj Devi had filed criminal complaint when defendant No. 1 had cheated and procured her signatures on the basis of family settlement and for these acts of fraud, misrepresentation and cheating, Parkash, Jai Bhagwan, Paras Ram and others were summoned for commission of offences under sections 406, 120B of the Indian Penal Code, vide order dated 22.12.1992, copy of which is Ex. P5 on the file.

Similar matter was agitated in civil suit and the copy of order passed on the application under order 39 Rules 1 and 2 of the Code of Civil Procedure, is Ex. P6. All these documents establish that there was no intention and reason for plaintiff No. 1 to execute agreement Ex. D1 in favour of defendant No. 1.

As regards to the evidentiary value of statement of expert and report of expert Ex. DW4/A on the file, plaintiff has taken the plea that her signatures were obtained on the basis of fraud and misrepresentation and she is not bound by that. Learned trial Court has rightly come to the conclusion that signatures of plaintiff No. 1 were procured by misrepresentation and on the basis of said family settlement, it cannot be said that plaintiff No. 1 has relinquished her rights qua the property in dispute in favour of defendant No. 1."

Even otherwise, the Appellate Court concluded that such a family settlement would require registration because the defendantappellant did not have nay preexisting right apart from his own right to the extent of 1/5th share. Reliance in this regard was placed on the judgment of the Supreme Court in the case of Bhoop Singh v. Ram Singh Major and others, 1995(3) RRR 541 (SC) : AIR 1996 SC 196.

Mr. Narender Hooda, learned counsel for the defendantappellant has argued that under Sections 8, 9 and 10 of the Hindu Succession Act, 1956, read with Schedule 1 when a male Hindu dies intestate, then his Class I heirs specified in the Schedule are to take the share simultaneously and to the exclusion of all other heirs. The learned counsel has pointed out that if this principle is borne in mind, then the judgments and decrees passed by the Courts below are liable to be set aside because in 1/5th share of Ram Kumar, apart from plaintiffrespondents 1 and 2, other Class I heirs like mother would also be entitled to equal shares. The learned counsel has submitted that out of 1/5th share, 1/3rd share has to be given to the mother of deceased Ram Kumar who is party to the proceedings and is defendantrespondent 5.

Mr. R.M. Singh, learned counsel for plaintiffrespondents 1 and 2 has submitted that in the joint written statement filed by the defendantappellant along with defendantrespondents 3 to 5, the only stand taken by them is that there is family settlement and by virtue of that family settlement, the defendantappellant has become the exclusive owner. No such plea has been raised in the joint written statement by the defendantappellant and defendantrespondents 3 to 5.

I have thoughtfully considered the respective submissions made by learned counsel for the parties and am of the view that this appeal is without merit and is, thus, liable to be dismissed. On a perusal of the written statement as produced by the learned counsel for plaintiffrespondents 1 and 2, it becomes evident that no plea with regard to share of defendantrespondent 5 Smt. Bhuri Devi was raised or taken by them. It is well settled that in the absence of any factual foundation laid by the parties in the proceedings, no plea could be permitted to be raised at the stage of appeal filed under Section 100 of the Code. It cannot be concluded that defendantrespondent 5 was entitled to some share in the property because it was required to be established as to whether defendantrespondent 5 Smt. Bhuri Devi has survived Ram Kumar the husband and father of plaintiffrespondents 1 and 2. In the absence of any such pleadings, issue and evidence no findings have been returned by the Courts below. Moreover, defendantrespondent 5 has not filed any appeal either before the learned Additional District Judge or before this Court which would lead to the conclusion that the findings recorded by the trial Court have become final with regard to her right. The appeal before the Additional District Judge as well as before this Court has been preferred only by defendantappellant Jai Bhagwan. Therefore, there is no merit in this appeal and the same is liable to be dismissed.

For the reasons aforementioned, this appeal fails and the same is dismissed.