-: 1 :- [CASE NUMBER]. HIGH COURT OF MADHYA PRADESH, JABALPUR BENCH INDORE ( Single Bench ) ( Hon'ble Shri Justice [ENTITY] ) [CASE NUMBER]. Smt. [ENTITY] w/o Hemantpuri VERSUS [ENTITY] s/o Late [ENTITY] and others Shri [ENTITY], learned counsel for the appellant. O R D E R
( Passed on this 31st day of January, 201[SECTION] ) THE appellant/plaintiff has filed the present appeal being aggrieved by judgment and decree dated 11.12.2015 passed in [CASE NUMBER] by IVth Civil Judge, Class-II, Mhow, District Indore and judgment and decree dated 26.04.2017 passed in [CASE NUMBER] by IIIrd Additional District Judge, Mhow by which civil suit as well as first appeal both have been dismissed.
[2] The plaintiff filed the suit for declaration, partition and permanent injunction in respect of agricultural land having Survey Nos.135/4, 136, 137/2, 13[SECTION] and 139/3, total area 2.376 hectares of Village Mhowgaon, Tehsuil Mhow, District Indore [hereinafter referred to as "the suit property"]. According to the plaintiff the entire suit property is a property of joint hindu family of the defendant Nos.1 to
-: 2 :- [CASE NUMBER].
4. The defendant No.1 vide order dated 23.11.1991 had received the property being head of the joint hindu family. Accordingly the plaintiff being a daughter she is having 1/5 th share in the suit property, hence the plaintiff filed the suit seeking permanent injunction to the effect that the defendants be restrained not to alienate or transfer the suit property.
[3] After notice, the defendant Nos.1 to 4 filed the written-statement by submitting that the marriage of the plaintiff had been solemnized 40 years back and now she is not a family member and during life time of defendant No.1, the plaintiff and the defendant Nos.2 to 4 are not having any right and title in the suit property.
[4] The learned Trial Court framed 5 issues for adjudication. The plaintiff examined herself as PW-1; [ENTITY] as PW-2 and [ENTITY] as PW-3. The defendant examined [ENTITY] as DW-1. The plaintiff has got exhibited 30 documents as Exs.P/1 to P/30 and the defendants got exhibited 5 documents as D/1 to D/5.
[5] The learned Trial Court after appreciating oral as well as documentary evidence came to the conclusion that the plaintiff has failed to prove that the suit property is a coparcenary property of plaintiff and the defendant Nos.1 to 4, therefore, she is not having 1/5th share in the suit property. The defendant No.1 got the property from his father by virtue of [SECTION] of the [ACT]. Hence, vide judgment and decree dated 11.12.2015 Civil Judge has dismissed the suit.
[6] The plaintiff has filed the first appeal before -: 3 :- [CASE NUMBER]. the District Judge. Vide judgment and decree dated
26.04.2017 learned IIIrd Additional District Judge has dismissed the first appeal and affirmed the judgment and decree of the Trial Court. Hence, the present second appeal before this Court.
[7] The appellant/plaintiff has assailed both the judgment and decree on the ground that both the Courts below have committed an error of law while dismissing the suit. There is a presumption about the hindu family is a joint family and in absence of any proof of division such legal presumption continuous to operate in the family. The ancestral property claimed on succession become the joint hindu family property. Therefore, the plaintiff being a daughter in the property is having equal share in the suit property under [SECTION] of the [ACT]. The appellant has suggested the following substantial questions of law :-
"(5.1) Whether, the appellant is entitled to get partition of her share in the scheduled properties being a co-owner, from the respondents under the provisions of the [ACT] ?
(5.2) Whether, the Courts below passed perverse judgments and decree in the circumstances when appellant was entitled to get partition of properties from the respondents ?
(5.3) Whether, the appellant is entitled to get her share in partition after the amendment took place in the year of 2005, in the [ACT] ? (5.4) Whether, the Courts below passed the judgment and decree against the evidence, witnesses and material available in the record ?
(5.5) Whether, the Courts below committed grave error of law in the circumstances of the case ?"
[[SECTION]] I have heard Shri [ENTITY], learned counsel
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appearing for the appellant and perused the records.
[9] The plaintiff has claimed the partition and 1/5th share in the suit property on the pretext that the suit property is a joint hindu family property which is defendant No.1 received from his father by way of partition in the year 1991 and after amendment in the year 2015 in the [ACT], the daughter is having equal share by birth in the joint hindu family property.
[10] The property was originally owned by father of the defendant No.1 and after his death the partition took place between the defendant No.1 and his two brothers and the same was recorded in the revenue records. Therefore, the defendant No.1 has become the absolute owner of the property by virtue of [SECTION] of the [ACT]. The partition took place in the year 1991 and the amendment in [SECTION] came into force in the year 2015 having effect of prospective in nature. Under [SECTION] and [SECTION] of the [ACT], the grand-son and grand-daughter are not having right and title in the coparcenary property and cannot claim partition during life time of the father. The similar issue was came up for consideration before the Apex Court in the case of [PRECEDENT] in which the Apex Court has held as under :-
"9. Under [SECTION] of [ACT], the property of a male Hindu dying intestate is to devolve according to the provisions of [SECTION] of the Act, firstly upon the heirs, being the relatives specified in Class-I of the Schedule and if there is no class I heir then upon Class II heir and so on. In the schedule grand-son has not been included in the list
-: 5 :- [CASE NUMBER].
of class I heirs, whereas son of a predeceased son is included therein, therefore, grand-son's birth right on the coparcenary property no longer exists under the Act and grand-son cannot claim partition during the lifetime of his father.
10. The Supreme court in the matter of Commissionerof Wealth Tax Kanpur etc. Vs. [ENTITY] etc. reported in AIR 19[SECTION]6 SC 1753 while approving the view taken by this Court in the matter of [ENTITY] Vs.Commissioner of Income Tax MP-I, reported in (19[SECTION]2) 13[SECTION] ITR 673; Allahabad High court in the matter of Commissioner of Income tax UP Vs. Ram Rakshpal Ashok Kumar, reported in (196[SECTION]) 67 ITR 164; the Full Bench judgment of Madras High court in the matter of [PRECEDENT], reported in [197[SECTION]] 114 ITR 523; and judgment of Andhra Pradesh High court in the matter of [PRECEDENT], reported in 144 ITR 1[SECTION], has held that since in Schedule to the [ACT], only son is included and son's son is not included as Class I heir therefore, the son would inherit the property in the situation contemplated by [SECTION] of the Act not as Karta of his own undivided family and that one should look only to the Act and not to the pre-existing Hindu law. Referring to [SECTION] of the Act, it is held that son's son get excluded and the son alone inherits the property to the exclusion of his son. In the judgment of this Court in the matter of [ENTITY] (supra) which has been approved by the Supreme court in the above judgment, it was held by this Court that son's son is not mentioned as Class I heir in the Schedule and therefore, he cannot get any right in the property of his grand-father under the Act. The right of son's son in his grand-father 's property during the lifetime of his father which existed under the Hindu law as in force before the Act is not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in suchproperty has ceased to have effect. It was further held that [SECTION] of the Act should be taken as a self-contained provision laying down the scheme of devolution of the property of a Hindu dying intestate. The Allahabad High court in the
-: 6 :- [CASE NUMBER].
matter of [PRECEDENT] (supra) has held that in case of assets of business left by father in the hands of his son, it would be governed by [SECTION] of the Act and he would take in his individual capacity. The Madras High court in the matter of [PRECEDENT] (supra) had held that by reason of [SECTION] of the Act, the son's son gets excluded and the son alone inherits the property to the exclusion of his son and that the statutory provision contained in the Act must prevail in view of the unequivocal intention in the statute itself, expressed in [SECTION]. The Andhra Pradesh High court in the matter of [PRECEDENT] (supra) had taken the view that the properties which devolved upon heirs mentioned in [SECTION] under [SECTION] of the Act constituted the absolute properties and the son's son will have no right by birth in such properties. The Supreme court in the matter of [ENTITY] (supra) has approved the above view of this Court as well as Allahabad, Andhra Pradesh and Madras High Courts. The contrary view of the Gujarat High court has been dis-approved by the Supreme court.
11. In the matter of Yudhishter Vs. Ashok Kumar, reported in AIR 19[SECTION]7 SC 55[SECTION] referring to the earlier judgment in the case of [ENTITY] (supra) it has been held by the Supreme Court that the property which devolved upon the father on the demise of the grand-father cannot be said to be HUF property in the hands of the father vis-a-vis his own sons. In the matter of Sheela Devi and others Vs. Lal Chand and another reported in (2006) [SECTION] SCC 5[SECTION]1, it has been further clarified by the Supreme court by holding that prior to the commencement of the Act as per the Mitakshara law usage once a son was born he used to acquire an interest in the coparcenary property as an incident of his birth, but now the Act would prevail over the Hindu law. In that case son's son was born prior to the commencement of 1956 Act therefore, it was held that he would retain his share of the property as a coparcener even after the commencement of the 1956 Act, while father who had died in 1[SECTION][SECTION]9, his share will devolve upon his
-: 7 :- [CASE NUMBER].
heirs according to the provisions of the Act. The Single Bench of this Court in the matter of [PRECEDENT] has also held that after coming into force of [ACT], the theory of birth right does not exist and the son gets share in the property only after death of his father. Similar view has also been taken by another Single Bench judgment in the matter of [PRECEDENT]."
[11] Therefore, in view of the above verdict of the Apex Court, both the Courts have rightly dismissed the suit for partition filed by the plaintiff during the life time of the defendant No.1.
[12] The Supreme Court in the case of Kshitish Chandra Bose v/s Commissioner of Ranchi, reported in (19[SECTION]1) 2 SCC 103 has held that the High Court cannot interfere with the conclusion of fact recorded by the Courts below, however, erroneous the said conclusion may appear. Para-11,12 & 13 of the aforesaid judgment is reproduced herein below :-
"11. On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under [SECTION] in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of adverse possession. In the case of [PRECEDENT], this Court held that the High Court had no jurisdiction to entertain second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows:
"It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact.
As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding."
-: [SECTION] :- [CASE NUMBER].
To the same effect is another decision of this Court in the case of [PRECEDENT], where the Court observed as follows:
"But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no jurisdiction under [SECTION] to correct that error."
12. The same view was taken in two earlier decisions of this Court in the cases of [PRECEDENT] and [PRECEDENT].
13. Thus, the High Court in this case had no jurisdiction after reversing the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicated above."
[13] Recently, the Apex Court in case of Adiveppa & Others v/s Bhimappa & Others, reported in (2017) 9 SCC 5[SECTION]6 has held as under :
"17. Here is a case where two Courts below, on appreciating the entire evidence, have come to a conclusion that the Plaintiffs failed to prove their case in relation to both the suit properties. The concurrent findings of facts recorded by the two Courts, which do not involve any question of law much less substantial question of law, are binding on this Court.
1[SECTION]. It is more so when these findings are neither against the pleadings nor against the evidence and nor contrary to any provision of law. They are also not perverse to the extent that no such findings could ever be recorded by any judicial person. In other words, unless the findings of facts, though concurrent, are found to be extremely perverse so as to affect the judicial conscious of a judge, they would be binding on the Appellate Court."
[14] Both the Courts have not committed error while dismissing the suit and the appeal. Therefore, I do not
-: 9 :- [CASE NUMBER].
find any ground and question of law involved in this appeal. In view of the above, this second appeal is dismissed.
[ [ENTITY] ] JUDGE [ENTITY] AK/* [ENTITY] 201[SECTION].02.02 12:35:23 -0[SECTION]'00'