Rakesh Kumar Tiwari Vs Smt. Nita Dubey

Smt. Nita Dubey W/o Shri Laxmi Narayan Dubey Aged About 47 Years Village/post Thankhamriya Near Sarsawati School Thankhamriya District Bemetara (C.G.)

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Smt. Reeta Sharma W/o Shri Suresh Sharma Aged About 45 Years Vill. Silhati, Post Podi Dist. Kabirdham (C.G.)

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Rukhmani Bai Wd/o Late Shri Ramavatar Tiwari Aged About 78 Years Village Uraiya, Post Beltara Thana Thankhamriya District Bemetara (C.G.)

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Smt. Bulbul Sharma D/o Shri Ashwani Kumar Tiwari Aged About 33 Years R/o Village Post Kesda, Tah. Simga, Bhatapara Dist. Balodabazar-Bhatapara (C.G.)

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Smt. Arti Sharma D/o Shri Ashwani Kumar Tiwari Aged About 29 Years R/o Village Post Kesda Tah. Simga, Bhatapara Dist. Balodabazar-Bhatapara (C.G.)

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Ranki Tiwari S/o Shri Ashwani Kumar Tiwari Aged About 23 Years R/o Village Post Kesda Tah. Simga, Bhatapara Dist. Balodabazar-Bhatapara (C.G.)

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Ramesh Kumar Tiwari S/o Late Shri Ramavtar Tiwari Aged About 51 Years Vill. Uraiya, Post Beltara Thana Thankhamriya District Bemetara (C.G.)

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State Of Chhattisgarh Through Collector, Bemetara (C.G.)

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... Respondents

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For Appellants	: Mr. Kishore Bhaduri, Sr. Advocate assisted by Ms. Smriti Singh and Mr. Khulesh Sahu, Advocates
For Respondent No.1 & 2	: Mr. Anurag Singh, Advocate
For Respondent No.3 & 7	: Mr. Vivek Kumar Agrawal, Advocate
For Respondent State	Mr. Pramod Ramteke, Panel Lawyer

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SB: Hon’ble Mr. Justice Parth Prateem Sahu

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Order on Board

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04.12.2024

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This second appeal has been filed by appellants questioning the legality and sustainability of the judgment and decree dated 3.5.2023 passed in Civil Appeal No.A/17/2020 whereby the learned 1^st Additional District Judge, Bemetara has affirmed the judgment and decree dated 29.2.2020 passed in C.S. No.5A/2014 by which learned Civil Judge Class-2 Saja, District Bemetara has allowed the suit filed by plaintiffs/respondents No.1 & 2, and dismissed the cross-suit filed by appellants herein.

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Facts leading to filing of this second appeal are that plaintiffs/ respondent No.1 and 2 filed civil suit for declaration of title,

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possession, permanent injunction and partition of the suit property description of which is mentioned in the plaint, inter alia, pleading that plaintiffs, defendant No.2, 6 and 7 are brother and sisters. Defendant No.3, 4 and 5 are children of Manju Tiwari (sister of plaintiffs). Defendant No.1 is mother of plaintiffs, defendant Nos.2, 6, 7 and said Manju Tiwari. Father of plaintiffs namely Ramawtar Tiwari was in government job and posted as Teacher. He died in harness on 8.8.1984 and the parties to the suit are his successors. Said Ramawtar Tiwari was having ancestral property recorded in his name, situated in village Uraiha, Tahsil Thankhamariya, District Bemetara. He had also purchased other properties from agriculture income of the ancestral property and income from his service. All the successors of said Ramawtar Tiwari are having equal share in the ancestral property. On the date of death of Ramawtar Tiwari, defendant No.6 and 7 were unmarried and minor. After the death of Ramawtar Tiwari, liability of family including marriage of plaintiffs came upon defendant No.6. The parties to the suit faced financial crises and therefore, with the agreement between the parties, defendant No.6 submitted an application for grant of compassionate appointment before the competent authority. Said application came to be rejected on the ground that family of defendant No.6 is having agriculture land more than what is

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prescribed under the existing rules for grant of compassionate appointment. Defendant No.1 (widow of late Ramawtar Tiwari), who was only major person in the family, took decision to get the immovable property recorded in the name of Late Ramawtar Tiwari, nominally partitioned and in this regard registered nominal partition deed was executed on 19.1.1993 in between defendant No.1, 6 and 7. In the said partition deed, defendant No.1 and 6 were given two hectare of land and defendant No.7 was given 9.89 hectare of land. In view of disproportionate partition effected, the partition deed itself is illegal. As the partition deed dated 19.1.1993 was nominal, the parties to the partition deed have not acted accordingly nor they were in separate possession of the land as mentioned therein. Defendant No.7 was also not in separate possession even though he was posted at Raipur and doing private job. Ancestral property was not partitioned in accordance with law. On 14.5.2013 one consent deed was executed by defendant No.7 in favour of defendant No.1 and 6 in presence of witnesses mentioning the suit property to be ancestral and share of defendant No.1 and 6 in the said property to the extent of 3.30 acre and 5 acres respectively and also agreed to partition the holdings accordingly. Based on consent deed, defendant No.1 and 6 submitted an application before the Tahsildar for partition of the holdings,

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however, defendant No.7 made pleading that defendant No.1 and 6 are not in possession of the land as lessee/tenant. He was not paid any amount and accordingly, application was dismissed. As suit property is ancestral property, therefore, the plaintiffs are entitled for share in the suit property to the extent of one-seventh. Cause of action arose when the application is filed before the Tahsildar based on the consent deed dated 14.5.2013 for partition of holdings.

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Defendant No.1 and 6 submitted written statement to the suit filed by plaintiffs accepting the partition deed dated 19.1.1993 to be nominal, execution of consent deed by defendant No.7 on the settlement entered into between defendant No.7 with them. It is also pleaded that pursuant to the provisions under Section 169 (2) (a) (b) of the Chhattisgarh Land Revenue Code, 1959, defendant No.6 became owner of the land mentioned in the partition deed, as defendant No.7 has not taken any step for eviction of defendant No.6 from the said property. It is also pleaded by defendants No.1 to 6 that parties to the suit are entitle for one-seventh share each in the suit property.

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Defendant No.2 pleaded in the written statement that on the date of execution of registered partition deed, the parties to the suit were present. Partition was done in accordance with law and with the consent of the parties. At the time of

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execution of partition deed, it was agreed between plaintiffs and defendants No.3 to 5 that they will not take any share in the suit property nor they will claim their rights.

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Defendant No.3 to 5 also submitted their written statement pleading therein that they were not aware about the execution of partition deed dated 19.1.1993 and therefore, it was not with their consent. Partition deed is not binding upon them. As the partition deed was nominal, it was not acted upon according to the conditions of partition. Partition deed dated 19.1.1993 does not bear signature of all the successors of Late Ramawatar Tiwari. It was also pleaded that they are also not aware about execution of consent deed dated 14.5.2013. As the suit property is ancestral property, they are entitled for equal share in the suit property.

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Defendant No.7 submitted separate written statement accepting the relationship as pleaded. It was also admitted that Ramawtar Tiwari died on 8.8.1994 and after his death, as per the Hindu Succession Act, defendant No.1, 6 and 7 are the only successors left. Suit is not filed within the period of limitation. On 19.1.1993 partition deed was executed according to which, compassionate appointment to defendant No.6; five acre land to defendant No.6 and defendant No.1 jointly and remaining agriculture land fallen in the share of defendant No.7. Partition deed is registered one. Partition

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was effected in accordance with law. Plaintiffs are not having any right to file suit seeking partition. It was not admitted in written statement that after the death of Ramawtar Tiwari, father of parties to the suit, the entire responsibility shifted on defendant No.7. It was pleaded that for the purpose of education of sisters and brothers and their marriage, defendant No.7 had sold the land fallen in his share bearing Khasra No.293/1 area 0.27 hectare. Suit was filed after 21 years of the partition and therefore, it is barred by limitation. Signatures have been obtained on blank stamp paper, therefore, consent deed is forged and fabricated, based upon which application was filed before the Tahsildar. Plaintiffs could not get any right over the suit property even after coming into force of the amendment in the Hindu Succession Act, 1956 as it will not affect the family settlement.

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Learned trial Court based on the pleadings of the respective parties framed as many as 09 issues for consideration and found the issue ‘whether plaintiffs are entitled for decree of declaration that registered partition deed dated 19.1.1993 executed in respect of suit property described in Schedule A is not binding upon the plaintiffs’, to be proved and held that plaintiffs are entitled to one-seventh share each in the suit property. However, the issue ‘whether cross-suit filed by defendant No.1 to 3 is maintainable’ was decided in

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affirmative i.e. proved. Further, the issue whether the suit filed by plaintiffs to be beyond period of limitation is decided in negative and allowed the suit. Judgment and decree dated 27.2.2020 passed by trial Court was put to challenge in appeal which came to be dismissed vide impugned judgment and decree.

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Learned Senior Counsel for appellants would argue that both the Courts have not considered in appropriate manner as to what will be effect of the amendment brought in Section 5 of the Act of 1956, which came into force on 9.9.2005. Referring to the provision under Section 6 (1) as also explanation appended to Section 6 (5) of the Act of 1956, it is submitted that amendment will not affect the partition already taken place prior to the year 2004. Prior to coming into force of amendment in Section 6, heritage was obstructed when registered partition deed was executed on 19.1.1993 and therefore, even after coming into force the amendment under Section 6, the family members of family are not having any right to claim share in the coparcenary property under Section 6 of the Act of 1956. In support of his contention, he placed reliance upon the decision of Hon’ble Supreme Court in case of Prashant Kumar Sahoo and ors vs. Charulata Sahu and ors, reported in 2023 LiveLaw (SC) 262 and Ramisetty Venkatanna and another vs. Nasyam Jamal Saheb and

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others, reported in 2023 SCC Online SC 521; order of the Madras High Court dated 17.2.2022 passed in Appeal Suit No.1016/2008 (V. Bakkiyam vs. C. Kandasamy Gounder (died) and others.

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He contended that registered partition deed was executed on 19.1.1993 i.e. much before the amendment brought in under Section 6 and much before the cut-off date and therefore, the partition which has already been effected in the year 1993, cannot be reopened at the instance of some family members of a joint family. He also submits that plaintiffs in the suit have only sought declaratory relief that registered partition deed dated 19.1.1993 is not binding on them, without seeking further relief of declaration that registered partition deed dated 19.1.1993 to be void. Without there being relief of declaration of registered partition deed dated 19.1.1993 to be null and void, the suit for partition would not lie, because, in absence of seeking aforementioned relief, the registered partition deed dated 19.1.1993 will remain in existence. He next contended that registered partition deed is dated 19.1.1993, it was acted upon by the parties, whereas civil suit is filed after 21 years from the date of execution of the registered partition deed, therefore, the suit is barred by limitation. Plaintiffs have not questioned / challenged the registered partition deed within prescribed period of limitation. Both the Courts erred in not

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considering the aforementioned ground and aspect involved in the suit in a proper manner and erroneously decreed the suit filed by plaintiffs.

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Learned counsel for respondents No.1 and 2 opposing the submission of learned Senior Counsel for appellants, would argue that judgments and decrees passed by the trial Court as also appellate Court are based on proper appreciation of evidence and law applicable to the facts of the case, hence they do not call for any interference. He contended that in the pleadings of the plaint, the plaintiffs have specifically pleaded as to the nature of registered partition deed dated 19.1.1993 to be nominal. Though partition deed was executed, however, respondents No.1, 6 and 7 remained in possession jointly till 2013. Contents of registered partition deed were not acted upon in accordance with the description of property partitioned in the said partition deed. From the face of partition deed it is apparent that it is nominal, because, the partition was disproportionate and only two hectare of land was given in share to defendant No.1 and 6 whereas 9.89 acre of land was given in share to defendant No.7. There is specific pleading in the plaint that purpose of execution of nominal partition deed was only to come out of the ground of rejection of application for grant of compassionate appointment, which was submitted by defendant No.6 and

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rejected considering area of agriculture land recorded in joint name of family members, which was more than five acres, and therefore, to show that agriculture land recorded in the name of defendant No.6 to be less than 5 acres, nominal partition deed was executed and registered. He next contended that after the death of Ramawtar Tiwari, defendant No.1 was only major member in the family and all the members acted upon according to her guidance being their children. Submission made by learned Senior Counsel for appellants that suit itself would not lie unless and until the relief of setting aside of registered partition deed dated 19.1.1993 is sought for or the relief of declaration that registered partition deed is void, is not correct. As the plaintiffs were not party to the document i.e. registered partition deed, they are not required to seek relief of declaration of said document to be void. They can file suit seeking declaration that registered partition deed dated 19.1.1993 is not binding upon them as they were not party to it. He also contended that cause of action arose only when based on the consent deed dated 14.5.2013, an application for partition of holding was submitted before the Tahsildar. Suit was filed immediately thereafter on 11.8.2014 i.e. within a period of one year and three months, therefore, it cannot be said that the suit was filed beyond the period of limitation. It

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is also contended that as the plaintiffs were not parties to the registered partition deed and even otherwise it was a nominal partition deed, the parties to the partition deed are even after execution of document remained in joint possession of the property, lived jointly, it was not acted upon and therefore, period of limitation for filing of suit for partition by plaintiffs would not apply, more so, when on the date of execution of said deed, the plaintiffs were minors. In support of his contention, he placed reliance upon the decision of Hon’ble Supreme Court in case of Ratnam Chettiar and others vs. S.M. Kuppuswami Chettiar and others, reported in (1976) 1 SCC 214; and Suhrid Singh @ Sardool Singh vs. Randhir Singh & ors, reported in 2010 (3) CGLJ 252 (SC).

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Heard learned counsel for the parties on admission.

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Though at the stage of admission respondents are not required to be heard, however, considering the fact that respondents No.1 and 2 have caused appearance on caveat, notices were issued to respondent No.3 to 7 vide order dated 3.7.2023, therefore, for proper appreciation of the facts, learned counsel for respondents No.1 and 2 is also heard on the question of admission.

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Indisputably, the property, subject matter of civil suit, is the ancestral property of Late Ramawtar Tiwari, father of plaintiff, defendant No.6, 7 and one Manju Tiwari and husband of

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defendant No.1. It is also not in dispute that Late Ramawtar Tiwari was a government servant working as Teacher and died in harness on 8.8.1984. Application for grant of compassionate appointment submitted by defendant No.6 was rejected on the ground that based on agriculture property recorded in the joint name of defendant No.1, 6 and 7 to be more than 5 acres, defendant No.6 is financially sound.

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To appreciate the grounds raised by learned Senior Counsel for appellants with respect to execution of registered partition deed on 19.1.1993, which is acted upon, and therefore, it became final and even the amendment brought in Section 6 of the Act of 1956 w.e.f. 9.9.2005, would not give any right to the plaintiffs, who are family members of joint family (coparceners), as the heritage was obstructed much prior to coming into force of amended provision under Section 6 of the Act of 1923, I have perused the record of the trial Court as also appellate court.

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In the plaint, the plaintiffs, who are daughters and coparceners of the family of Late Ramawtar Tiwari, have specifically pleaded that registered partition deed dated 19.1.1993 was a nominal partition deed. They also pleaded purpose for which execution of such partition deed specifying that it was executed only to obtain benefit of compassionate appointment in favour of defendant No.6, son of Late

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Ramawtar Tiwari. Pleadings made in plaint of rejection of application for grant of compassionate appointment is not specifically disputed by defendant No.7 in his written statement. In fact, in Para-4 of written statement there is specific pleading that after the death of Ramawtar Tiwari, it was agreed upon under a family settlement that compassionate appointment be given to defendant No.6; five acres land to defendant No.1 and 6 jointly and remaining land to defendant No.7. Therefore, the plaintiffs are having no right to file suit. Defendant No.1-mother of plaintiffs as also defendant No.6 and 7, has submitted written statement admitting pleading of execution of registered partition deed to be nominal. It was also pleaded that on the date of death of Ramawtar Tiwari, as per provision of Section 8 of the Act of 1956, the children of male died intestate to be Class-I heirs and after the death of Ramawtar Tiwari, right in favour of all of them including defendant No.1 had accrued over the suit property being successors and Class-1 heirs. Pleadings made in the plaint with respect to execution of consent deed by defendant No.7 on 14.5.2013 for further partition of holdings is also admitted. Defendant No.7 though admitted document dated 14.5.2013, however, pleaded it to be illegal.

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Registered partition deed is marked as Ex.P-5, perusal of which would show that defendants No.1 & 6 are Party No.1

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whereas defendant No.2 is Party No.2 in the said document. Plaintiffs, who are coparceners and members of joint family, are not the party to Ex.P-5. There is no specific mention in the partition deed that even they consented to the partition as executed between the Party No.1 and Party No.2 to the partition deed or they have extinguished their right over the suit property, which is a joint family ancestral property.

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PW-1 Neeta Dubey in Para-3 of her examination-in-chief has stated about the reason for execution of partition deed Ex.P-5 (nominal) and it was not between the family members. It is further stated that only with the intent to extinguish right of plaintiffs, consent deed dated 14.5.2013 was executed between defendant No.1 (mother) and defendant No.6 & 7 (brothers) and based on said consent deed (Ex.P-3, application was submitted before the Tahsildar on 26.8.2013 which was rejected on the ground that there was oral partition and question of title is involved. Order sheet is filed Ex.P-4. This witness in cross-examination denied the suggestion that she was having knowledge about the execution of partition deed Ex.P-5. She also stated that as per partition deed, defendant No.1 and 6 received 05 acre land jointly and defendant No.7 received 24.23 acre land.

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Reeta Sharma (PW-2) also made statement that she was not aware of the execution of registered partition deed. She was

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not shown partition deed. In the cross-examination she stated that she got the knowledge about partition deed in the year 2013.

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Defendant No.7 was examined as DW-1 and in Para-1 of his cross-examination, he has stated that he prosecuted his studies from Class 12^th to B.Com 2^nd year in Saja and thereafter went to Durg for further studies where he prosecuted his studies till 1999. He admitted that all the expenses of his education was being sent from village Uraiya. Expenditure of his studies was sent from the income of ancestral property. He denied the suggestion that during that period agriculture activities were done by defendant No.1 and 6. However, he admitted that they were doing agriculture work jointly. He further admitted that agriculture land was given on lease and the income received from land is being used in maintaining the family and also for purchasing further agriculture land. He admitted that prior to 2007, his mother, brother (defendant No.6) had worked jointly and the entire family is maintained from the said income. He also admitted that dispute arose between the parties in the year 2013. In para-58 he admitted that partition deed dated 19.1.1993 was executed to provide compassionate appointment to his brother.

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From the above evidence available in record i.e. contents of partition deed, Ex.P-5, it is apparent that other coparcener of ancestral property are not party to it. As per provision of Sections 8, 9 and 10 of the Act of 1956, surviving sons, daughters are Class I heirs and as per general rule of succession, property of a Hindu male died intestate shall devolve firstly upon heirs being relative specified in Class-1 of the Schedule. Under the Schedule of Class-I heirs, daughters are also included along with others, as mentioned therein. After the death of father Late Ramawtar Tiwari in 1984, right and share of the plaintiffs accrued in the ancestral property and they were not party to the partition deed Ex.P-5 prepared on 19.1.1993. Pleadings made in written statement by defendant No.7 that plaintiffs have extinguished their rights on the date of execution of registered partition deed, is also not proved because there is no such mention in Ex.P-5, under the signature of plaintiffs.

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Learned trial Court in its judgment considering the nature of registered partition deed, the circumstances under which it was executed and the evidence of respective witnesses, has held that suit property is ancestral property, the partition deed, Ex.P-5, in respect of suit property was executed between defendant No.1, 6 and 7 only, whereas plaintiffs, who are also successors, are not party to it as it does not contain their

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signature. As per Hindu Succession Act, on death of a male Hindu, property belonged to him is to be partitioned among his heirs. Any documentary or independent oral evidence is not available in record establishing that that plaintiffs have extinguished their share in the suit property. Said partition deed was executed between defendant No.1, 6 and 7, based on which name of defendant No.6 and 7 have been recorded in land records. Since the partition deed is not executed in accordance with law as also against the interest of plaintiffs who are having right in the ancestral property, the same is not binding in any manner on the plaintiffs and they are entitled for one-seventh share each in the suit property. This finding of the trial Court is affirmed by the first appellate Court by the impugned judgment. Aforementioned finding recorded by trial Court and affirmed by the first Appellate Court is a factual finding based on appreciation of evidence, hence it cannot be interfered in the second appeal.

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With respect to argument advanced by learned Senior Counsel for appellants based on proviso to Section 6 (1) and Section 6 (5) of the Act of 1956 that Section 6 will not apply to the partition which has been affected before 20.12.2004, in the facts and circumstances of the case is having no force because in the preceding paragraphs this Court based on the evidence brought on record by the respective parties, in

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particularly admission made by defendant No.7 in his evidence that even after execution of partition deed, defendant No.1, 6 and defendant No.7 were in joint possession of the ancestral property, carrying out agriculture work jointly, maintaining joint family from the income of joint family property, from the income of joint family property expenses towards education of defendant No.7 was borne by defendant No.1 and 6 and therefore from the evidence it is clear that though partition deed was executed but there was no severance of the property.

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To appreciate the submission of learned Senior Counsel for appellant, I find it appropriate to extract relevant provision of Section 6 of the Act of 1956:-

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“6. Devolution of interest in coparcenary property. — (1)On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

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(a) by birth become a coparcener in her own right in the same manner as the son;

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(b) have the same rights in the coparcenary property as she would have had if she had been a son;

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(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be

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deemed to include a reference to a daughter of a coparcener:

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Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2) xxxxx

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(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, —

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(a) the daughter is allotted the same share as is allotted to a son;

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(b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; and

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(c) the share of the pre-deceased child of a predeceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-

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deceased son or a pre-deceased daughter, as the case may be.

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Explanation. —For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

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xxxxx

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Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.]

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Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”

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A bare reading of above extracted provision would show that sub-section (1) of Section 6 of the Act of 1956 envisages that this sub-section shall not invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20^th day of December 2004. Sub-section (5) of Section 6, which starts with non-obstante clause, made this section not applicable to a partition which has been effected before the 20^th day of December 2004. Explanation appended to sub-section (5) defines the ‘partition’ which means any partition made by

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execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court. It is not in dispute that partition deed, Ex.P-5, is a registered document, however, in the given facts, circumstances and evidence available on record, it is to be seen whether partition is nominal or it is acted upon by meets and bounds, as mentioned in the partition deed. In the evidence of the defendant No.7, , as discussed above, he has admitted that from the date of execution of partition deed till 2013, there was no dispute at all. Defendants No.1, 6 and 7 (parties to partition deed) were in joint possession of the ancestral property, doing agriculture work jointly, enjoying income received from joint family property jointly. Hence, in view of aforementioned specific evidence of defendant No.7, who has been allotted much more share than other two named in partition deed, leaving others, nature of document Ex.P-5 cannot be accepted to be a valid partition in accordance with law.

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From the above evidence available in record, facts and circumstances of case, intention of the parties to the partition deed, it cannot be safely concluded that the property stood as obstructed heritage and therefore, in the opinion of this Court, the proviso to Section 6 (1) and Section 6 (5) of the Act of 1956 are not having application to the facts of present case.

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Hon‘ble Supreme Court in case of Vineeta Sharma vs. Rakesh Sharma and others , reported in (2020) 9 SCC 1 , while dealing with amended provision of Section 6 of the Act of 1956, as amended on 9.9.2005, has held thus:-

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“60.The amended provisions of section 6 (1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1) (a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Section 6 (1) (a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6 (1) (b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.

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67.The proviso to section 6 (1) and section 6 (5) saves any partition effected before 20.12.2004. However, Explanation to Section 6 (1) (5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court.

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Other forms of partition have not been recognised under the definition of 'partition' in the Explanation.

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Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Section 6 (1) (a) and Section 6 (1) (b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6 (1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to Section 6 (1) read with Section 6 (1) (5).

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The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6 (1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights

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conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6 (1) (a).”

¶112

If the facts as also evidence available on record in the case at hand are considered in the light of above decision of Hon’ble Supreme Court in case of Vineeta Sharma (supra) , it is apparent that father of plaintiffs, defendants No.6 and 7 and husband of defendant No.1, died intestate in the year 1984 when, as pleaded and stated, all the children were minors. Partition deed is after nine years of the death of owner of the land. However, the appellants, who being daughters became entitled for share in the suit property as per old law applicable for partition after death of their father in the year 1984 under Section 8 of the Act of 1956, have not been made parties to the partition deed, there was no obstruction to heritage. In such a situation, in the opinion of this Court, coparcenary existed on the date of coming into force of amended provision under Section 6 of the Act of 1956 i.e. 9.9.2005.

¶113

In view of above, this Court does not find any illegality or irregularity in the findings recorded by learned trial Court and affirmed by the learned first appellate Court that the registered partition deed dated 19.1.1993 is not binding upon

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the plaintiffs / respondents no.1 and 2 herein and also finding on Issue No.6 to be not proved. Said finding is based on appreciation of evidence by both the Courts.

¶116

Coming to the ground raised by learned Senior Counsel for appellants that the suit will not lie unless the plaintiffs seek relief of declaration of registered partition deed dated 19.1.1993 to be null and void. Admittedly, the plaintiffs were members of joint family after the death of Ramawtar Tiwari, they were not party to the partition deed Ex.P-5. Issue as to what relief can be claimed by the person who is not executant of the deed, came up for consideration before Hon’ble Supreme court in case of Suhrid Singh @ Sardool Singh (supra) and it was observed thus:-

¶117

“6.Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est , or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer / conveyance, can be brought out by the following illustration relating to A' and B' -- two brothers. A' executes a sale deed in favour of C'. Subsequently A' wants to avoid the sale. A' has to

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sue for cancellation of the deed. On the other hand, if B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different….”

¶120

In the case at hand, the plaintiffs were admittedly not party to the partition deed, Ex.P-5, and therefore the relief claimed by them that deed Ex.P-5 is not binding upon them is sufficient and just. Hence, the aforementioned submission of learned Senior Counsel for the appellants is not sustainable.

¶121

Last ground raised by learned Senior Counsel for appellants is that suit is barred by limitation. There is specific pleading in plaint that the plaintiffs were not party to the document Ex.P-5, they were not aware about the execution of registered partition deed. From the facts and evidence, as discussed above, it is appearing from the evidence of defendant No.7 as also other witnesses that even after execution of registered partition deed, though for the purpose of getting compassionate appointment in favour of defendant No.6, however, it was not acted upon and ancestral property continued to be in joint possession of defendant No.1, 6 and

¶122

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¶123

They cultivated agriculture land jointly, enjoyed income of joint family property jointly and thus, it is apparent that there was no partition of the ancestral property in accordance with law and as held by the trial Court and affirmed by the first appellate Court.

¶124

From the pleadings and evidence on record, the dispute arose in the year 2013 when based on consent deed, an application was filed in the Court of Tahsildar and thereafter suit was filed within a period of one year eight months. Hon’ble Supreme Court in case of Ratnam Chettiar (supra) has laid down the preposition regarding reopening of partition and held thus:-

¶125

“16. Learned counsel for the respondents submitted that taking a broad view of the whole case the Court should hold that it was not a case of unfair or unjust partition, because both defendants Nos. 1 and 5 were persons who had shrewd business experience and had voluntarily accepted the partition of the properties which was by and large equal. The learned counsel relied on the decision of this Court in Devarajan and Ors. v. Janaki Ammal and Ors¹ where this Court observed as follows:

¶126

"Generally speaking, a partition once effected is final and cannot be reopened on the ground of mere inequality of shares, though it can be reopened in case of fraud or mistake or subsequent recovery of family property: [see Moro Vishvanath v. Ganesh Vithal (1873) 10 Bom. H.C.R. 444]. Further an allotment bona fide made in the course of a partition by common consent of the coparceners is not open to attack when the shares are not absolutely

¶127

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¶128

equal, or are not strictly in accordance with those settled by law. It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them. Even so, so long as there is no fraud, unfair dealing or over-reaching by one member as against another, Hindu law requires that a bona fide partition made on the basis of the common consent of coparceners must be respected and is irrevocable:"

¶129

It was submitted that the evidence and circumstances of the case clearly show that there was no inequality of shares and the plea of fraud or mistake has not been accepted by the courts and that on the whole the partition was bond fide. It is true that if this was the position the ratio of the decision in Devarajan's case (supra) would undoubtedly apply to this case. But this Court had taken care to point out in these very observations which are underlined by us that this rule did not apply to the minors who are undoubtedly permitted in law to reopen the partition once it is proved that the partition was unfair or unjust to them. In view of the concurrent finding of fact of the two Courts below that the partition of movable properties, excepting those with respect to the shares, was unfair and unjust, even according to the decision mentioned above the partition with respect to the movable properties has to be reopened.

¶130

19.Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:

¶131

(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.

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(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.

¶134

(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.

¶135

(4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.

¶136

The facts of the present case, in our opinion, fall squarely within propositions Nos. (3) and (4) indicated above.”

¶137

In the case at hand, there was no common consent of all the coparceners as the plaintiffs,who are coparceners in the suit property, were not party to the partition deed Ex.P-5. As in the partition deed, family co-parcernars / plaintiffs were not allotted any share, their consent was not recorded, said partition deed though held to be nominal, as discussed in preceding paragraphs of this judgment, was unjust, unfair and

¶138

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¶139

detrimental tot he interest of the plaintiffs because no share has been allotted to them and therefore, in the facts of present case and decision of Hon’ble Supreme Court, the suit for partition can be brought in by coparcener at any point of time.

¶140

So far as decision in case of Ramisetty Venkatanna (supra), which is relied upon by the appellants, is concerned, the same is of no help to the appellants being distinguishable on facts. In that case, plaintiffs have sought for correction in the partition deed in between predecessors in interest of plaintiffs and the Court also observed that no relief has been sought with respect to partition deed dated 11.3.1953 even after pleading the case that there was an error in the partition deed dated 11.3.1953.

¶141

In the case of C. Doddanarayana Reddy and others vs. C. Jayarama Reddy and others , reported in (2020) 4 SCC 659 , the Hon'ble Apex Court has observed and held as under :-

¶142

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karanataka Board of Wakf v. AnjumanE-Ismail Madris-Un-Niswan, (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

¶143

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¶144

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

¶145

14.In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166), this Court held :

¶146

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

¶147

And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p. 486, para 5)

¶148

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¶149

'5.... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible.' "

¶150

The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once,two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

¶151

Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact.”

¶152

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¶153

In the case of State of Rajasthan and Ors. vs. Shiv Dayal and Ors. reported in (2019) 8 SCC 637 Hon’ble Supreme Couert has observed and concluded thus:-

¶154

“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117].

¶155

In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.”

¶156

For the foregoing discussion, in the opinion of this Court, the concurrent findings recorded by both the Courts well supported by evidence and reasons, which are valid and cogent, call for no interference in this second appeal. The law is well settled that a second appeal shall not be admitted

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if no substantial question of law arises for consideration and when no substantial question of law is involved.

¶159

In the case on hand, as this Court finds that no substantial questions of law is involved, this second appeal is liable for dismissal at the stage of admission in view of the settled legal position and in view of the narrow compass of Section 100 of the Code. Accordingly this Court finds that no case is made out for admitting the second appeal.

¶160

In the result, this second appeal is dismissed at the stage of

¶161

admission. There shall be no order as to costs.

¶162

Digitally
SYED signed
ROSHAN by SYED
ZAMIR ROSHAN
ALI ZAMIR
ALI

¶163

Sd/(Parth Prateem Sahu) Judge

¶164

roshan/-

Rakesh Kumar Tiwari v. Smt. Nita Dubey

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Rakesh Kumar Tiwari v. Smt. Nita Dubey

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