S.B.CIVIL MISC. APPEAL NO.593/2009-Rakesh vs.Kishan lal Kumawat & Ors. Judgment dt:6/5/09 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Rakesh vs. Kishan lal Kumawat & Ors. S.B.CIVIL MISC. APPEAL NO.593/2009 DATE OF JUDGMENT : 6/5/2009 P R E S E N T HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Sandeep Shah, for the appellant. Mr.Sajjan Singh, for the respondent. BY THE COURT: 1. Heard learned counsels. 2. By the impugned order dated 18/4/2009 the learned trial court has rejected the application for temporary injunction filed by the plaintiff relying on the decision of Hon'ble Supreme Court in case of Bhanwar Singh vs. Puran & Ors. - 2008 DNJ (SC) 364. In the said case following the earlier decision of Supreme Court in the case of Commissioner of Wealth Tax, Kanpur & Ors. vs. Chander Sen & S.B.CIVIL MISC. APPEAL NO.593/2009-Rakesh vs.Kishan lal Kumawat & Ors. Judgment dt:6/5/09 2/5 Ors.- (1986) 3 SCR 254 interpreting Section 8 of the Hindu Succession Act the Court held that : “10. The only question arises for consideration is as to whether the appellant had acquired any interest therein by his birth in the year 1977; Bhima having died in 1972. 11. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non-obstente provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grand son, so long as father is living, has not S.B.CIVIL MISC. APPEAL NO.593/2009-Rakesh vs.Kishan lal Kumawat & Ors. Judgment dt:6/5/09 3/5 been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stripes, as also tenants-in-common and not as joint tenants. 12. Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record of rights. A partition had taken place amongst the heirs of Bhima. 13. Although the learned First Appellate Court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants in common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue.” S.B.CIVIL MISC. APPEAL NO.593/2009-Rakesh vs.Kishan lal Kumawat & Ors. Judgment dt:6/5/09 4/5 3. In view of the written statement of defendant that partition has taken place between the Bhagwan Lal, Bhanwar Lal and Kishan Lal (father of present appellant-Rakesh) and the property falling in the share of Kishan Lal was to be treated as self acquired property and, therefore, he was entitled to sell the same to defendant nos. 5 to 8 under the agreement to sell. 4. The grievance of the present appellant-plaintiff is that the respondent defendants in whose favour said agreement is executed is neither registered nor properly stamped agreement, therefore, temporary injunction ought to have been granted during the pendency of the suit filed by him. He further submits that writ petition arising out of the revenue suit filed by other brothers of his father Kishan Lal, this Court has passed the status quo order with respect to same agriculture land. 5. Be that as it may, having heard learned counsel and upon perusal of impugned order and the judgment relied upon by the learned trial court, this Court is satisfied that the learned trial court has not erred in rejecting the application filed by the present appellant S.B.CIVIL MISC. APPEAL NO.593/2009-Rakesh vs.Kishan lal Kumawat & Ors. Judgment dt:6/5/09 5/5 – plaintiff under Order 39 Rule 1 and 2 CPC. Respective rights of the parties are bound to be decided in the suit and other revenue proceedings, which is said to be pending. 6. There is no force in the present misc. appeal. The same is accordingly dismissed. (DR.VINEET KOTHARI),J. Item no.593/09 baweja/-