Dismissed

Chandra Kumar v. Krishna Devi and 3 Others

Allahabad HC11 Feb 2020SAPL/164/2020

Case brief

AI extract

What is this about?

In this second appeal, the Court dismissed the appellant's claim to partition a property purchased in a joint venture. The appellant, who had been estopped from claiming the property was ancestral due to a prior 1988 compromise, sought to invoke Section 22 of the Hindu Succession Act. The Court held the trial court correctly rejected the claim due to estoppel and lack of novus actus interveniens.

What did the court decide?

The appeal was dismissed thereby upholding the judgment of the first appellate court.

Chandra Kumar Vs Krishna Devi and 3 Others — Partition | Allahabad HC (2020)

¶1

Court No. - 53

¶2

Case :- SECOND APPEAL No. - 164 of 2020

¶3

Appellant :- Chandra Kumar Respondent :- Krishna Devi And 3 Others Counsel for Appellant :- Syed Irfan Ali

¶4

Hon'ble Vivek Agarwal,J.

¶5

Heard Sri Syed Irfan Ali, learned counsel for the appellant. This second appeal has been filed by the plaintiff being aggrieved by judgment/order dated 19.10.2019 passed in Civil Appeal No.141 of 2017 (Chandra Kumar Vs. Smt. Krishna Devi and others) vide which the learned first appellate court has dismissed the appeal and has affirmed the judgment/order dated 18.10.2017 passed in Original Suit No.150 of 2015 by the Court of Additional Civil Judge (Senior Division), Aligarh.

¶6

Appellant's contention is that earlier a suit was filed by the appellant along with his brother namely Pramod Kumar which was registered as Original Suit No.741 of 1987. In this suit, the subject matter of this appeal was in dispute. In that suit mentioned that the property was purchased through a joint venture and, therefore, a compromise was entered into between the parties as is evident from order dated 05.02.1988 passed by the court of civil judge, Aligarh as compromise document 12-A was duly verified and the original suit was decided in terms of compromise document 12-A whereby, it was directed that this compromise document 12-A shall form part of decree. Thereafter, plaintiff-appellant, Chandra Kumar filed a suit in the year 2015 claiming partition of the property on the ground that it was in fact an ancestral property and not a joint venture property. On such suit, an objection was filed by the defendants and they had filed an application under Order 7 Rule 11 C.P.C. which was accepted by the learned Trial Court and dismissed the suit on the ground that the suit was not maintainable

¶7

inasmuch as earlier suit was compromised in the year 1988 as is evident from Annexure-2 wherein, it was canvassed that the property which is subject matter of the dispute now is a self acquired joint venture property and, therefore, plaintiff was estopped from taking a plea of ancestral property. First appeal too has been dismissed upholding the judgment and decree passed by the trial court.

¶8

Learned counsel for the appellant submits that if suit would have continued he would have been in a position to demonstrate that when earlier suit no.741 of 1987 was filed, then Promod Kumar was aged about 29 years whereas, present appellant was aged about 28 years and he had signed on the plaint averments as per the instructions of his elder brother Pramod Kumar and further they were not having any source of income, therefore, the property in question was purchased through the ancestral resources and by virtue of property in question being purchased through ancestral resources, it is in fact an ancestral property. However, when specifically enquired as to whether in the suit from which the present appeal culminates, any plea was taken for cancellation of the compromise judgment and decree dated 06.02.1988, it is fairly submitted by learned counsel for the appellant that no such relief was claimed in the plaint forming subject matter of Original Suit No.150 of 2015.

¶9

In view of such admitted facts, a party is not permitted to take different stance as per its convenience at different point of time and learned trial court has rightly exercised its jurisdiction while entertaining an application under Order 7 Rule 11 C.P.C holding that declaration of preferential right to purchase the property as per the provisions of Section 22 of Hindu Succession Act is not available to the plaintiff.

¶10

The first appellate court has also rightly affirmed the findings recorded by the trial court which does not call for any

¶11

interference in the peculiar facts and circumstances of the case, therefore, appeal fails and is dismissed.

¶12

Order Date :- 11.2.2020 Ashutosh

Chandra Kumar v. Krishna Devi and 3 Others

Case brief

What is this about?

What did the court decide?

Chandra Kumar v. Krishna Devi and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ramadhin Vs Braj Bahadur and 2 Others

Dayal Swaroop Kulshretha in the Matter of the Estate of Late Smt. Vidhulata Kulshreshta and Another Vs Smt. Priya and Another

Mohammad Altaf Vs Zahoor Ahmad and 10 Ors.

Majaj Akhtar and 7 Others Vs Labour Sahakari Awas Samiti Ltd. and 4 Others

Hariom Gupta Vs Naresh Kumar Authorized Officer and 3 Others

Nagendra Pal Singh Vs Brijbhan @ Munna and 4 Others