Jaldevi vs Matadeen

Rohit Arya, J.—Heard on the question of admission. This appeal u/s 100 of C.P.C. is directed against the judgment and decree dated 14-1-2011 passed by Third Additional District Judge, Bhind in Civil Appeal No. 15/2009; reversing the judgment and decree dated 27-7-1998 passed by First Civil Judge, Class-II, Bhind in Civil Suit No. 200-A/1997.

Appeal is admitted on following substantial question of law:--

Whether, on facts and in the circumstances of the case, the First Appellate Court was justified in reversing the judgment and decree of the Trial Court, in light of Section 82 of Madhya Bharat Land Revenue and Tenancy Act, Samwat, 2007, keeping in mind the concurrent findings as regards death of Chinku during the period 1953 to 1955?

Facts necessary for disposal of this appeal in narrow compass are that agricultural land admeasuring 15 biga 10 biswa was jointly owned by Kandhole, Churaman and Chinku. Kandhole was having � share of the suit land whereas Churaman and Chinku were having � share each. Subject matter of the suit land in the instant case as per the plaint allegation is � share of Chinku, who after his death was survived by his wife Mula and daughters Vaikunthi and Jaldevi. However, having come to know that the name of Vaikunthi was not endorsed in the revenue record and suit land is recorded in the name of Mula only, and further that Mula had sold the suit land to one Sonelal on 1-2-1982 and in turn Sonelal had sold the suit land to defendant-Matadeen, the original plaintiff had filed the instant suit for declaration, partition and permanent injunction. She also prayed for declaration of sale deeds executed by Mula in favour of Sonelal and in turn the sale deed executed by Sonelal in favour of Matadeen as null and void. Matadeen also filed the counter claim.

Admitted facts of the case are that earlier also against the judgment and decree dated 27-7-1998 passed by the First Civil Judge, Class-II in Civil Suit No. 200-A/1997, defendant-Matadeen preferred first appeal before the Second ADJ, Bhind, which was registered as Civil Appeal No. 5-A/1998 and the same was allowed vide judgment and decree dated 17-2-1999 and the judgment and decree passed by Trial Court was set aside. Against the said judgment and decree dated 17-2-1999, a second appeal was preferred before this Court being S.A. No. 194/1999 and the same was partly allowed by order dated 19-6-2008. Judgment and decree dated 17-2-1998 was set aside. The matter was remanded back to the First Appellate Court to decide the appeal afresh after permitting the plaintiff to file documents in rebuttal to documents filed by the defendants under Order XLI Rule 27 C.P.C. However, after remand, the plaintiff did not file any documents. Except plaintiff No. 1-Jaldevi, remaining plaintiffs remained ex parte. The plaintiff claimed to have acquired the right over the suit land to the extent of her share on the premise that after death of Chinku, who was survived by wife Mula and daughters Vaikunthi and herself, she is entitled for 1/3rd share in the suit property.

Admittedly, death of Chinku had taken place in between 1953 to 1955. The plaintiff claimed her share in the suit property to the extent of 1/3 of the suit property left by Chinku on the premise that in terms of Hindu Succession Act, 1956, she is entitled for 1/3 share in view of the amendment brought in the Hindu Succession Act stating that the aforesaid amendment is retrospective in nature. On the other hand, it is submitted that amendment brought in Section 6 of Hindu Succession Act, 1956 does not have retrospective operation and the intention legislature in that behalf is well explicit from the amended Section 6 of Hindu Succession Act. Besides, it is submitted that in terms of Section 82 of the Madhya Bharat Land Revenue and Tenancy Act, Samwat, 2007, the suit property left behind by Chinku shall devolve upon his widow as the Class I heir as Chinku was having no son. Daughters fall in Class II and III category.

Learned Court below has considered the aforesaid submissions in the light of the factual matrix of the case, i.e., pleadings and evidence on record and held in Para. 11 of the impugned judgment that the death of Chinku had taken place during the period 1953 to 1955. There is no evidence, contrary thereto on record. After death of Chinku, name of his widow Mula was recorded in Khasra Panchshala in the year 1956 and therefore, it is evident that Chinku died prior to year 1956. In view of the aforesaid facts and circumstances, the First Appellate Court held that Mula being the sole owner of the suit land was competent to execute the sale deed (Exh.P-1) in favour of Solelal and therefore, Sonelal was also having full authority to execute the sale deed in favour of defendant-Matadeen and under such circumstances, the decree passed in favour of plaintiff-Jaldevi was set aside.

Having perused the judgment of Courts below and the record of the case, it is evident that after death Chinku was survived by widow Mula and two daughters namely Vaikunthi and Jaldevi. Chinku was having no son. As per the evidence on record, the death of Chinku had taken place during the period 1953 to 1955. In absence of any evidence to the contrary as regard the date of death, there is no reason to discard the conclusive evidence as regards the period of death of Chinku. The provisions of Section 6 of the Hindu Succession Act, 1956 came into force in the year 1956 and since the death of Chinku had taken place prior to 1956, the succession shall be governed under the provisions of Madhya Bharat Land Revenue and Tenancy Act, Samwat, 2007, Section 82 of which deals with devolution of rights on the death of male Pakka tenant. Section 82 provides that when a male Pakka tenant dies, his interest in his holding shall devolve in accordance with the order of succession. For ready reference, relevant portion of Section 82 is quoted hereinbelow:--

Devolution of right on the death of a male Pakka tenant.--

When a male Pakka tenant dies, his interest in his holding shall devolve in accordance with the order of succession given below:--

Class I -- Son, grandson (son''s son), great grandson (son''s son''s son), widow and predeceased son''s widow, predeceased grandson''s widow and predeceased great grandson''s widow.

Class II -- Unmarried daughter.

Class III -- Married daughter.

Class IV -- Father.

Class V -- Mother (if she is a widow).

Class VI -- Step-mother (if she is a widow).

Class VII -- Brother of the whole blood.

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(Emphasis supplied)

In view of the aforesaid legal position, Court below was fully justified in holding that plaintiff-Jaldevi had no right to succeed the estate left behind by Chinku, his widow Mula was solely entitled to succeed the estate left behind by Chinku. Hence, the sale deed executed by Mula in favour of Solelal vide Exh. P-1 was legal and valid sale deed and accordingly, the sale deed executed by Sonelal in favour of Matadeen in respect of suit property vide Exh. P-2 is also a legal and valid transfer of property. Plaintiff-Jaldevi has rightly been held to be not entitled for the relief of declaration, partition and permanent injunction in respect of suit land and the suit has rightly been dismissed. Having gone through the judgments on record and the record of Courts below, the substantial questions of law is answered in affirmative as this Court is of the opinion that First Appellate Court has duly appreciated the evidence on record and recorded impregnable findings of facts and applied the law correctly. The judgment and decree passed by the First Appellate Court is confirmed. The appeal sans merits, is hereby dismissed.