R.S.A. No. 252 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 252 of 2006 (O&M) Date of decision: 29.1.2009 Smt. Ram Wati ....Appellant Versus Viney Deep and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. I.P.S. Doabia, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This order shall dispose of R.S.A. No. 252 of 2006 titled Smt. Ram Wati Vs. Viney Deep and others and R.S.A. No. 254 of 2006 titled Smt. Ram Wati Vs. Viney Deep and others, as common questions of law and fact are involved. For the sake of brevity, facts are being taken from R.S.A. No. 252 fo 2006 titled Smt. Ram Wati Vs. Viney Deep and others. This regular second appeal is directed against the judgment and decree dated 30.9.2005 passed by the learned lower appellate Court dismissing the suit filed by the plaintiff/appellant to challenge the alienation made by Vijay Bahadur, husband and father of the plaintiffs, in favour of Viney Deep by way of consent decree. R.S.A. No. 252 of 2006 (O&M) -2- The alienation of property by Vijay Bahadur, who was registered owner of the property, was challenged on the ground that the property in hand of Vijay Bahadur was coparcenary Joint Hindu Family Property, in which the plaintiff/appellant had interest and, therefore, had right to challenge. The learned trial Court placed reliance on the judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others AIR 1976 Supreme Court 1239 to decree the suit. The Hon'ble Supreme Court while interpreting Section 6 of the Hindu Succession Act has been pleased to lay down as under: - “Another Division Bench of the Bombay High Court in Rangubai Lalji V. Laxman Lalji, 68 Bom LR 74: (AIR 1966 Bom 169) had already reconsidered and dissented from the earlier Division Bench judgment in Shiramabai Bhimgonda, (AIR 1964 Bom 263). In these two cases, the judgment of the Bench was delivered by the same learned Judge, Patel J. On further consideration the learned Judge felt that Shiramabai was not fully argued and was incorrectly decided and that on a true view of law, the widow's share must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death. In the judgment under appeal the High Court has based itself on the judgment in Rangubai Lalji endorsing indirectly the view that Shiramabai was incorrectly decided.” In appeal, the judgment and decree passed by the learned trial Court stands reversed by the learned lower appellate Court by placing reliance on judgment of the Hon'ble Allahabad High Court in Mt. Ram Dei Vs. Mt. Gyorsi and others AIR (37) 1950 Allahabad 76, wherein the R.S.A. No. 252 of 2006 (O&M) -3- Hon'ble Allahabad High Court has been pleased to lay down as under: - “The learned counsel for the appellant, however, now seeks further to challenge the sale made by Ram Kumar in 1940 in favour of plaintiffs 1 and 2 on the ground that it was not supported by legal necessity or by any antecedent debt. We are somewhat disinclined to permit fresh contentions being raised at this stage of the case. We prefer, however, to overrule the plea on another ground. It would be remembered that Mt. Ram Dei claimed possession of the property only for purpose of residence and in the right of a person entitled to maintenance. It has already been held that she does not possess these rights any longer in view of her relinquishment. There can be no doubt that Mt. Ram Dei is outside the coparcenary body. In view of the settled law that an alienation can be impeached only by a coparcener or by a transferee who has acquired the interest of the entire joint family in the property alienated. The defendant-appellant is out of Court: she has no power of avoidance of the transfer and is therefore not entitled to raise a plea in that behalf. See in this connection Madan Lal V. Gajendrapal Singh, 51 ALL 575 :(A.I.R. (16) 1929 ALL. 243) and Madan Lal V. Chiddu, 53 ALL. 21 : (A.I.R. (17) 1930 All. 852).” The reliance was also placed on Commentary of Mullah on Hindu Law stating therein that female cannot be coparceners. (Para 217 of Commentary of Mullah on Hindu Law reads as under: -) “No female can be a coparcener under Mitakshara Law. Even a wife, though she is entitled to maintenance out of her husband's property, and has to that extent an interest in his property, is not her husband's coparcener. Nor is a mother a coparcener with her sons, neither a mother-in-law with her daughter-in-law. There can be no coparcenary between a mother and daughter among devadasis. Nor could a widow succeeding under the Hindu Women's Right to Property Act to her husband's share in a joint family be a coparcener. Also, see Section 6 of the Hindu Succession Act, 1956.” The learned counsel for the appellant contends that this appeal R.S.A. No. 252 of 2006 (O&M) -4- raises the following substantial questions of law: - “1. Whether the learned lower appellate Court could reverse the well reasoned judgment and decree by placing reliance on the judgment of Hon'ble High Court in preference to Hon'ble Supreme Court? 2. Whether the provisions of Hindu Women's Right to Property Act, 1973 and Section 6 of the Hindu Succession Act, 1956 could be ignored?” The learned counsel for the appellant, besides placing relaince on the judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others (supra) also placed reliance on the judgment of the Hon'ble Supreme Court in Raj Rani Vs. The Chief Settlement Commissioner, Delhi and others, AIR 1984 Supreme Court 1234 to contend that in view of the provisions of Section 6 of the Hindu Succession Act and explanation added thereto, the learned lower appellate Court was in error in reversing the well reasoned judgment of the learned trial Court by holding that widow and the daughter had no interest in the coparcenary property to challenge the alienation. The contention of the learned counsel for the appellant, therefore, is that the finding recorded by the learned lower appellate Court is perverse on the face of record and is outcome of mis-application of settled law, as the Courts are bound to follow the law laid down by Hon'ble Supreme Court, in preference to High Courts. However, on consideration of matter, I find no force in the contention raised by the learned counsel for the appellant. The Hon'ble Supreme Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others and Raj Rani Vs. The Chief R.S.A. No. 252 of 2006 (O&M) -5- Settlement Commissioner, Delhi and others (supra) has nowhere laid down that a female i.e. widow and daughter can be coparcener in a Joint Hindu Family. The authorities referred to by the learned counsel for the appellant, in fact, deal with right of succession and share on the death of a male member qua property in his hand at the time of his death. The judgment of the Hon'ble Allahabad High Court, and Commentary of Mullah on Hindu Law clearly observe that females cannot be member of coparcenery property. It is otherwise well settled law that prior to amendment, the females were not coparcener or members of Hindu Joint Family property, and the right was only limited to maintenance. The amendment is not retrospective, which could give right to female to challenge alienation. The plaintiff/appellant, challenged the alienation said to have been made by the Karta of the family, without legal necessity. The learned lower appellate Court was right in coming to the conclusion that the plaintiff/appellant had no locus standi to challenge the sale. The substantial questions of law as framed thus do not arise for consideration. No merit. Dismissed. (Vinod K. Sharma) Judge January 29, 2009 R.S.