Surendra Nath Asopa s/o Shri Kunwarlal Asopa vs Jaisendra Nath s/o late Shri Kunwarlalji Asopa

This civil regular First Appeal under sec.96 CPC has been

filed against judgment & decree dated 27.11.2007 passed by the

Additional District Judge (FT) No.4, Jodhpur in Civil Original suit

No.100/2007 ( Surendra Nath v. Jasendra Nath & others ), whereby

suit of the plaintiff has been partially decreed.

Briefly stated, the appellant-plaintiff filed a suit for partition

of the property of his father late Kunwar Lal Asopa. It was stated

that late Kunwar Lal in his lifetime made a writing and expressed

his last desire that after his demise, his property be divided

amongst all four sons equally and his daughters should not be

given anything in the property.

It was also stated that the plaintiff, by incurring personal

expenses of Rs.6 Lacs got constructed additional rooms on the

roof, first floor & second floor. It was also mentioned in the plaint

that the portion constructed by the plaintiff be given in the share

of plaintiff and if it is not possible, then the expenses borne by

him be got compensated from other sharers. In this manner, the

plaintiff claimed 1/4th share in the disputed property.

In sum and substance, case of the plaintiff is that the

property in hands of late late Kanwar Lal came to him by partition

from his father and Kunwar Lal during his lifetime executed a

''tehreer'' expressing his desire to divide the property equally

amongst his four sons and excluded his daughters and further,

that the building on the first floor and above, were raised from

personal funds of the appellant-plaintiff. It was also stated that

the respondent No.1 only appeared amongst the respondent-

defendants and he supported the averments made in the plaint.

Statement of plaintiff was not opposed by any of the defendants

and hence, suit of the plaintiff deserves to be decreed in toto in

terms of relief prayed for by the plaintiff.

The trial court vide judgment & decree dated 27.11.2007

decreed the suit partially and granted 1/6th share to plaintiff

instead of 1/4th share. Being aggrieved by the judgment & decree

dated 27.11.2007, the appellant-plaintiff has preferred this appeal

on the ground that the trial court committed serious error of law

as well as on facts in deciding issues No.1 and 2. There was ample

material on the file and the trial court has not at all considered

material facts and evidence produced in this connection.

It was also contended that the findings recorded by the trial

court that the property, being ancestral, the daughters are equally

entitled to share, whether they have claimed or not; legally cannot

be sustained. It is well settled from catena of jugments of Hon''ble

Apex Court that under the law, the property after partition coming

in the hands of son looses ancestral character and the same

regains character as self-acquired property of the son in whose

hands it has fallen. Thus, the judgment and decree of the trial

court can not be sustained and deserves to be modified by

enhancing the share of the appellant-plaintiff from 1/6th to 1/4th.

It was further contended that the trial court has committed

illegality in granting the relief not asked for by the respondent-

daughters and virtually without asking the court ought not to have

granted the relief. Those defendants have not turned up in the suit

and not participated in the trial. In support of his arguments, the

appellant-plaintiff placed reliance on judgment of the Apex Court

reported in 2015 CJ (Partition) 441: Prakash & ors. v. Phulavati &

ors . and contended that under the Hindu Succession Act, 1956,

sec.6 (as amended by the Act of 2005) providing for right of

daughter in the coparcenary property, the amended provisions can

not be given retrospective effect. Rights under the amended

provisions are applicable to living daughters as on 09 th September

2005 irrespective of when such daughters were born. The partition

had taken place before 20.12.2004 and it will remain unaffected.

Perused the judgment cited by the learned counsel for the

appellant and the pleadings & evidence available on record.

In this case, the respondent No.1 while admitting contents of

para 2 of the plaint, also contended that he is entitled to 1/4th

share in the property. Defendants No.2 to 5 did not appear and

therefore, the trial court proceeded ex parte against them. The

respondents No.6 & 7 (daughters) did not appear. The appellant-

plaintiff in his statement before the trial court on affidavit, in para

8 contended that late Shri Kunwar Lal has written one ''tehreer'' by

which he partitioned the property and gave one share to each of

his sons. So far as rights of daughters, it was written in the

''tehreer'' that in lieu of their share in the property, cash has been

given to them. So-called ''tehreer'' was said to be exhibited as Ex.1

but on perusal of the record, the document is found not so

exhibited. It was a typed matter on a plain paper and signature of

Kunwar Lal is there at the bottom. This so-called partition-deed

bears no signature of any witness before whom it was written nor

has it been registered nor exhibited. The trial court has rightly

observed in its judgment at para 16 that there was no partition of

the property between parties and therefore, the defendants No.6

and 7, who are daughters of late Kunwar Lal, are also entitled to

their share in the property.

The ratio of the judgment in Prakash & ors v. Phulvati & ors

(supra) cited by learned counsel for the appellant is not applicable

in the facts and circumstances of the present case. There is no

ground for interference in the judgment and decree dated

27.11.2007 passed by the trial court. The appeal is devoid of

merits and the same is hereby dismissed.