Case: RADHA BAI Vs. RAM NARAYAN

3. The appellant filed suit in the Court of Civil Judge, Class – First, Shakti – District Bilaspur being Civil Suit No.31/A of 1985 asserting that the land situated in Village Barra, Tehsil Shakti, more particularly described in Schedule A of the plaint, was owned and possessed by Sukhdeo Chhannahu son of Sardha Chhannahu. Sukhdeo was a Hindu and governed by the Mitakshra Laws. The suit land came in the hands of Sukhdeo as ancestral property, in which Sukhdeo and his sons Janakram and Pilaram were having joint shares being coparceners. The appellants father Saheblal was the son of Janakram, who had another son by name Sonu (original defendant No. 4, who has died during the pendency of the present appeal). The appellants father Saheblal predeceased Janakram (his father) and Sukhdeo (his grand-father). He died in 1957, whereas Janakram died in 1982 and Sukhdeo, in 1965. Saheblal left behind Laxminbai, his wife and their daughter Radhabai (appellant/plaintiff). In this backdrop, the appellant asserted that she was entitled to a share in the suit property, claiming through her father Saheblal. The appellants mother had already expired in 1984 before filing of the suit in 19854. It is the case of the appellant that after the death of her mother, the appellant came to village Barra and requested the Patwari of the village to mutate the land in her name. In response, she was told that the land had already been mutated in the name of Ram Narayan (defendant No.1), Jaya Narayan (defendant No. 2) and Rohit Kumar (defendant No.3) ¬ three sons of Sonu (deceased defendant No. 4), by virtue of the registered sale deed executed in their favour by Janakram on 21 st July, 1979. It was further revealed that after the demise of Sukhdeo in 1965, his two sons Janakram and Pilaram partitioned the suit property in or around the year 1967, as a result of which, the suit property came to the exclusive share of Janakram and he had become absolute owner thereof, on the basis of which right, he executed registered sale deed in favour of his three grandsons (sons of his son Sonu (now deceased) ¬ defendant Nos.1 to 3 respectively)5. Immediately after becoming aware of the above, in 1985, the appellant instituted the suit for declaration and possession and sought the following reliefs:14.): Prayer of the plaintiff is as under:¬ i): The court should award decree about the possession of the relevant disputed land to the plaintiff; I(a): By partitioning the disputed lands, half share be awarded to the plaintiff, and its land revenue should be determined separatelyii): The plaintiff may be awarded expenses of the suitiii): Looking to the circumstances of the suit, whatsoever appropriate relief the court may consider it fit and just, the same may be awarded to the plaintiff6. The respondents¬defendants resisted the said suit. On the basis of the rival pleadings, the Trial Court framed as many as 9 issues, which read thus:(1): Whether, after the death of Sukhdev, partition of the joint & united property had been carried in between Janakram & Pilaram. Yes(2): Whether, the disputed land was received by Janakram in the said partition. Not proved(3): Whether, up to the year 1982, the disputed land remained entered in joint & united accounts of Janakram, Laxminbai and the plaintiffDue to negative conclusion of issue No.2, detailed appreciation has not been done(4): Whether, Janakram had no right to sale the disputed property/land(5): Whether, the sale deed dated 21 st of July, 1997 is illegal and void(6): Whether, the plaintiff is entitled to obtain the possession of the disputed lands(7): Relief & Expenses. Suit is dismissed. The rival parties shall bear their own expenses(8): Whether, the plaintiff is entitled to get half share in the disputed lands. Not proved(9): Whether, the suit of the plaintiff is not maintainable. No. Its maintainable7. The Trial Court after analysing the evidence on record, proceeded to dismiss the suit preferred by the appellant vide judgement and decree dated 24 th November, 20008. Being aggrieved, the appellant filed appeal being Civil Appeal No.5-A of 2001 in the Court of Additional District Judge, Shakti, District Bilaspur-Chhattisgarh. The Appellate Court, however, reversed the conclusion reached by the Trial Court and allowed the appeal vide judgment and decree dated 22 nd January, 2002. The operative order passed by the First Appellate Court reads thus:26.): On the basis of the abovementioned critical appreciation, decree may be drawn to the following effect:¬i): That, resultant to acceptance of the appeal of the appellant, the impugned judgment and the decree dated 24 th of November, 2000 is set asideii): That, resultant to acceptance of the appeal of the appellant, the suit of the plaintiff/appellant is accepted, and it is ordered that the plaintiff/appellant is entitled to obtain possession over the half share separately, by carrying out partition of half share of the disputed land, which has been enumerated in the Schedule A annexed with the plaint; and accordingly land revenue to that effect should also be determinediii): The Schedule A annexed with the plaint shall be integral part of the decreeiv): The answering plaintiffs/respondents apart from bearing their own expenses of the case, shall also bear the expenses of the case of the plaintiff/appellantv): Advocates fee, upon verification be payable in the decree at Rs.300/- (Rupees Three hundred only)vi): Accordingly, decree may be drawn9. The respondents¬original defendant Nos. 1 to 4 filed second appeal before the High Court, being Second Appeal No.84 of 2002. While admitting the second appeal, the Court formulated two questions as substantial questions of law. The same read thus:1. Whether the plaintiff being the female had got the right to partition to the property solely belonged to Sukhdeo and devolved upon Janak Ram by survivorship after the demise of his father Sukhdeo?2. Whether the suit land inherited by late Janak Ram from his father Sukhdeo, the sole owner of the same became the ancestral property for the plaintiff on the date of death of Sukhdeo in 1965 and on the date of death of Janak Ram in 1982?10. After analysing the factual matrix and the evidence on record, the High Court opined that the Appellate Court committed manifest error and misapplied the settled legal position. The High Court considered the matter in the following words:8. The sole point which thus arises for determination in the Second Appeal is whether the suit property was held by Janak Ram in his own right to the exclusion of Pila Ram, and whether the rule of succession or the rule of survivorship shall apply. It has been pleaded in the plaint that three years after the death of Sukhdeo, a partition took place in which the suit properties had fallen to the share of Janak Ram. Once a partition of the coparcenary property takes place and the coparcener is put in exclusive possession of the property falling to his share to the exclusion of others he acquires an absolute right over the property. The plaintiff Radha Bai had a mere spes successionis and would have been entitled to a share by succession which would have opened only after the death of Janak Ram. In this view of the matter, since Janak Ram, prior to his death in 1982, had sold the suit lands to the defendants No.1to 3 by executing a registered sale deed, the plaintiff Radha Bai could question the same only on the limited ground of fraud or being without consideration. During life time of Janak Ram, Radha Bai, being the daughter of a predeceased son Saheblal, had merely a spes successionis to the suit property and nothing more. There is no material on record to show that the defendant No.4 – Sonu had got the sale deed dated 21.7.1979 executed from Janak Ram perforce or without consideration. In this view of the matter, Janak Ram who, after partition, held the suit property to the exclusion of the other coparcener had an absolute right to sell it to the defendants no.1 to 3. Radha Bai, the plaintiff, having failed to prove that the sale deed was without consideration or was executed perforce could not challenge the said transaction on any ground. The evidence led by Radha Bai itself shows that she had full knowledge of the sale deed executed by Janak Ram in favour of defendants No.1 to 3. Radha bai, the plaintiff, did not enter the witness box despite present in Court and having been asked to do so. In this view of the matter, I am of the considered opinion that the suit filed by Radha Bai must fail because the rule of succession applied to the facts of the case and succession would have opened only after the death of Janak Ram, who was the exclusive owner of the share received by him in partition with Pilaram. The substantial question No.1 is thus answered in negative that Janak Ram being the exclusive owner of the suit property, during his life time Radha Bai had acquired no right to the suit properties and to file a suit for partition and possession of the suit lands which had already been sold by Janak Ram during his life time by executing a sale deed in favour of defendants No.1 to 3. Question No.2 is answered that after death of Sukhdeo, there was a partition of coparcenary property in which Janak Ram had received the suit lands as his share and was therefore, the absolute owner of the suit property. In this view of the matter, rule of survivorship does not apply to the facts of the present case, since suit property, after partition, was held by Janak Ram in his own right and to the exclusion of the other coparcener. Thus, the suit property had, after partition effected between Janak Ram and Pila Ram, ceased to be ancestral property and was held by Janak Ram as exclusive owner thereof. The rule of succession would thus apply to the present case and succession would have opened only after the death of Janak Ram. Therefore, Radha Bai, who had a mere spes successionis could succeed only by proving that the sale deed executed by Janak Ram was without consideration or was got executed by defendant no.4 – Sonu perforce. Having failed to do so, the suit must fail9. Having answered both the substantial questions of law, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The judgment and decree dated 22.1.2002 passed by Additional District Judge, Sakti, District Bilaspur in Civil Appeal No.5-A/2001 is set aside and the judgment and decree passed by Civil Judge, Class-II, Sakti dated 24.11.2000 in Civil Suit No.90¬A/88 is affirmed. There shall be no order as to costs.

Reasoning:
19. Reverting to the factual matrix of the present case, it is noticed that Sukhdeo had inherited ancestral property and was alive till 1965. The father of appellant, Saheblal, predeceased him in 1957. Saheblal was the son of Janakram. Janakram died in 1982. During the life time of Janakram, in terms of Section 6 of the 1956 Act, Saheblal could not have succeeded to the property as he could claim only through Janakram. Janakram, however, was alive till 1982. If Saheblal himself had no claim in his own rights, the question of appellant, being his daughter, succeeding to the property does not arise20. The consistent view of this Court, including of three Judge Bench, is that the grand son or grand daughter is clearly excluded from heirs in Class-I. Saheblal himself was grand son of Sukhdeo, who predeceased Sukhdeo. After the demise of Sukhdeo in 1965, therefore, the ancestral suit property could be and came to be partitioned between Janakram and Pilaram in 1967. As a result of that partition, the suit property came to the exclusive share of Janakram in his individual capacity. He could, therefore, legitimately dispose of the same in the manner he desired and which he did in favour of his grandsons (defendant Nos.1 to 3 respectively) vide registered sale deed dated 21 st July, 1979. Neither the stated partition of 1967 nor the registered sale deed in favour of respondents (defendant Nos.1 to 3) dated 21 st July, 1979 has been challenged. The relief sought in the suit as filed by the appellant/plaintiff is only for partition and awarding share to the appellant/plaintiff alongwith possession. Suffice it to observe that, the grand-daughter of Janakram (appellant herein) could not have claimed a higher right than the right of her father Saheblal21. Reliance placed by the appellant on the decision of this Court in Gurupad Khandappa Magdum (supra), is inapposite22. A priori, we uphold the view taken by the High Court that after the death of Sukhdeo in 1965, the property devolved upon his two sons Janakram and Pilaram. They succeeded to the ancestral property equally. They later effected partition in 1967, as a result of which, the property came to the exclusive share of Janakram. The father of appellant, Saheblal, had predeceased his father Janakram and even his grandfather Sukhdeo. During the life time of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position to the present case, the grounds urged by the appellant need to be rejected.