Kheek Bai @Rambai Vs Amrutlal and Ors.

For Appellant : Mr. Udho Ram Koshaley, Advocate For Res. No. 1 and 2 : Mr. Ratnesh Kumar Agrawal, Advocate For State : Mr. Neeraj Sharma, Dy. Advocate General

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Hon'ble Shri Justice Narendra Kumar Vyas

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C.A.V. JUDGMENT

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KISHORE KUMAR DESHMUKH

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Digitally signed by KISHORE KUMAR DESHMUKH Date: 2025.01.28 10:44:30 +0530

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This appeal has been preferred by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 04.11.2011 passed by the

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Page 2 of 14 learned Additional District Judge, Sakti District Janjgir-Champa (C.G.) in Civil Appeal No.49-A/2010, whereby the first appellate Court has allowed the appeal filed by the respondent/ defendants and set aside the judgment and decree dated 26.07.2010 passed by the Civil Judge, Class-II, Malkharauda, District - Janjgir-Champa (C.G.) in Civil Suit No. 16-A/09 whereby the suit filed by the plaintiff has been decreed in her favour.

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The parties to this appeal shall be referred to hereinafter as per their description in the civil suit.

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This appeal was admitted by this Court on 05.02.2013 on the following substantial questions of law:-

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(i) Whether the First Appellate Court was justified in reversing the judgment and decree passed by the trial Court, which decreed the plaintiff’s suit for declaration of plaintiff’s share in the suit property and also for partition and possession in respect of her share?

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(ii) Whether the First Appellate Court was justified in dismissing the plaintiff’s suit by holding that since other cosharers were not made the parties, therefore, the suit was dismissed for want of necessary parties ?

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(iii) Whether on the facts found, the First Appellate Court was justified in dismissing the suit by allowing the defendant’ appeal?

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Briefly stated the facts of the case are that

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A. Plaintiff filed a suit for partition, declaration of title and possession of her share over land as described in Schedule "A" and Schedule "B" attached with the plaint situated at village – Kalmi, Tahsil – Malkharauda, District – JanjgirChampa (hereinafter referred to as ‘the suit property’) contending that she and defendant No.-2 are brother and sister and defendant No.-1 Amrutlal is their father, they are Hindus of Sahu (Teli) caste and are governed by Mitakshara branch of Hindu law. Defendant No.-1 Amrutlal has five daughters and one son, namely Khikbai alias Rambai (plaintiff), Khirbai, Kapoorbai, Ramsagar (defendant No.-2), Ramkumari and Rameshwari respectively. The suit property mentioned in Schedule 'A' is ancestral property having registration in the name of plaintiff's father Amrutlal (defendant No.-1). The land described in Schedule 'B' is registered in the name of plaintiff's brother Ramsagar (defendant no.-2), which was purchased from time to time from the nucleus of ancestral property. As such, both the suit property described in Schedule 'A' and Schedule "B" are the ancestral property of the plaintiff and the defendants.

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B. When the plaintiff demanded partition of the suit land from defendants No. 1 and 2 in December 2007, they assured the plaintiff that they would divide her share of the suit land and give it to her, but they did not divide the share. When the plaintiff again demanded partition of the suit land in May 2008, the defendants refused to give her share which has

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necessitated the plaintiff to file a suit claiming 1/7^th share of the suit property. Her sisters have not claimed partition for suit property.

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Defendants No. 1 and 2 filed their joint reply, denying the allegation mainly contending that the suit land is not ancestral land, but it is the self-acquired property of defendants No. 1 and 2 as such the plaintiff has no right to claim her share over the suit property. It has been further contended that other sisters of the plaintiff are necessary parties in this case and in absence of necessary party the suit is not maintainable and would pray for dismissal of the suit.

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The learned trial Court on the pleadings of the parties has framed as many as 7 issues. The issue numbers 1, 2 and 4 are relevant therefore, they are extracted below:-

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1- D;k okni= ds lkFk layXu vuqlwph & v es mYyf[kr Hkwfe izfroknh dz& 1 dh iSr`d Hkwfe gS \

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2- D;k okni= ds lkFk layXu vuqlwph & c es mYyf[kr Hkwfe iSr`d laifRr ds vk; ls dz; dh x;h gS \

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4- D;k nkok i{kdkjksa ds vla;kstu ls nwf"kr gS \

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The plaintiff to substantiate her case has examined herself and submitted examination in chief by way of an affidavit as provided under Order 18 Rule 4 of the C.P.C., wherein she has reiterated the stand taken in the plaint and exhibited documents i.e. Kistbani Khatauni (Ex.P/1 and 2), Intimation under Section 155 of the Cr.P.C. by Police (Ex.P/3), Certified copy of B-1 year 1992-93 (Ex.P/4), Kistbandi Khatauni (Ex.P/5 and 6), Khasra

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Mishal Form (Ex.P/7). The plaintiff was extensively crossexamined by the defendants wherein she has denied that the suit property has been purchased by the defendants and also denied that she has not produced any document to demonstrate that the property is ancestral property. From the documents produced by the plaintiff, the Khasra Missal year 1929-30 the land has been recorded in the name of Shakhiram and in the Kistbandi Khatauni for 1992-93 it is quite vivid that the land described in Schedule A was recorded in the name of Gopichand S/o Shakhiram and in 2007-08 the land was recorded in the name of Amrutlal S/o Gopichand.

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The defendants to substantiate their case have examined Amrutlal as D.W.1. by way of affidavit wherein he has reiterated the defence taken in the written statement. The witness was cross-examined before the trial Court wherein in the crossexamination he has stated that from the ancestral property he has received three acres land in the partition and presently he is having seven acres land. He has also admitted that after death of his father all his three brothers have recorded their names. He has denied that he is not doing any business and he has also stated that he has closed down the milk business presently. He has denied that he has purchased the cattle from the income of ancestral property. He has voluntarily stated that initially he has purchased one cow and after selling the milk he has purchased the other cattle. He has admitted that from the nucleus of ancestral property he has purchased three acres land and his

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son has no other alternate source except the agriculture and having three acres of land. He has also stated that the plaintiff has contacted other sisters for partition but they have refused. The Defendants exhibited documents Certified copy of appeal before SDM, Sakti dated 02.06.2003 (Ex.D/1), order sheet dated 08.04.04 (Ex.D/2), letter to the SDM for closure of proceeding dated 06.04.2004 (Ex.D/3), certificate by Tahsildar (Ex.D/4), Upon appreciation of the oral and documentary evidence adduced by the parties, learned trial Court by its judgment and decree dated 26.07.2010 held that the plaintiff is entitled to get 1/7th share of the property described in Schedule A and B.

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Being aggrieved by the judgment and decree passed by the learned trial Court, the defendants No. 1 and 2, preferred first appeal on 13.08.2010 under Section 96 of Civil Procedure Code before the Learned Additional District Judge, Sakti, District - Janjgir-Champa which was registered as Civil Appeal No. 49-A/1010. The main contention of the appellants in the appeal was that the learned trial Court has committed illegality in holding that the plaintiff is entitled for 1/7th share in the property as during the life time of the father, the daughter is not entitled for partition, therefore, prayed for setting aside the judgment and decree of learned trial Court. Learned first Appellate Court vide its judgment dated 04.11.2011 has allowed the appeal and dismissed the suit on account of non-joinder of necessary party as the plaintiff has not arrayed all the sisters as party to the case.

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Being aggrieved with the judgment and decree passed by the learned first Appellate Court, the plaintiff has preferred Second Appeal before this Court which is registered as S.A. No. 131/2012 and this Court admitted the appeal on 05.02.2013 on the substantial question of law as aforesaid.

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Learned counsel for the appellant would submit that the land in question is the ancestral property of her father, thus, she is entitled to get 1/7th of the share of the suit land. He would further submit that the property described in Schedule B is generated from the nucleus of the ancestral property, as such, plaintiff is entitled to get her share from this property also and would pray for setting aside the order of the first appellate Court and would pray for restoration of judgment and decree passed by the trial Court.

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Learned counsel for the respondents would submit that the learned first appellate Court has rightly quashed the judgment and decree passed by the learned trial Court for non-joinder of necessary party, therefore, it does not call for any interference by this Court and would pray for dismissal of the present appeal and would pray that the substantial questions of law No. 1 and 2 framed by this Court be decided against the appellant and the substantial question of law No. 3 be answered in favour of the defendants.

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I have heard learned counsel for the parties and perused the record.

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Finding on substantial question of law No. (ii).

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Since, the substantial question of law No. 2 is required to be answered first therefore, it is answered first. From the record it is quite vivid that property described in Schedule A is ancestral property and whether the property described in Schedule B is generated from nucleus of ancestral property has to be ascertained but it is well settled position of law that every coparcener in ancestral property is entitled to claim his/her share by way of partition and a property cannot be effectively partitioned unless and until the metes and bounds are bifurcated among all the coparceners. Therefore, all the sisters of the appellant who are coparceners in the suit property are necessary party to the case. The Hon’ble Supreme Court in case of Moreshar Yadaorao Mahajan vs. Vyankatesh Sitaram Bhedi

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(D) through Lrs and Others { (2022 SCC OnLine 1307} has examined the issue of necessary party and has held in paragraph 17, 18, 19, 20, 21 as under:-

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This Court, in the case of Mumbai International Airport Private Limited (supra), has observed thus:

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“15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in

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a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

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It could thus be seen that a “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a “necessary party” is not impleaded, the suit itself is liable to be dismissed.

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As already discussed hereinabove, the plaintiff himself has admitted in the plaint that the suit property is jointly owned by the defendant, his wife and three sons. A specific objection was also taken by the defendant in his written statement with regard to non-joinder of necessary parties. Since the suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant’s wife and three sons without impleading them. Even in spite of the defendant taking an objection in that regard, the plaintiff has chosen not to implead the defendant’s wife and three sons as party defendants. Insofar as the reliance placed by Shri Chitnis on the judgment of this Court in the case of Kasturi (supra) is concerned, the question therein was as to whether a person who claims independent title and possession adversely to the title of a vendor could be a necessary party or not. In this context, this Court held thus:

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“7. …….From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are — (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.”

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It can thus be seen that what has been held by this Court is that for being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party.

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In view of the plaintiff’s own admission that the suit property was jointly owned by the defendant, his wife and three sons, no effective decree could have been passed in their absence.

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Again the Hon’ble Supreme Court in case of Rajendhiran vs.

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Muthaiammal @ Muthayee and Others {(2024) 2 SCC 661}

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has considered the issue of necessary party and has held as under :-

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Palaniyappan, father of defendant no.1 had 24 cents in

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this property, out of which 12 cents fell to the share of defendant no.1, out of which, she sold 11 cents to the second defendant. Plaintiffs had set up a case without any basis only in order to deprive the defendants of their property. It was also pleaded that there were other coowners in survey number in question who had not been impleaded as defendants, as such the suit was bad in law for non-joinder of necessary parties.

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11.2 The suit was bad for non-joinder of necessary parties as the co-owners/co-sharers were not impleaded as defendants;

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The First Appellate Court also approved the finding regarding non-joinder of necessary parties.

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Interestingly although the plaintiffs set up a case that the land in suit was coming from Avinashi Gounder but on record, two pattas were filed which establish that the survey number in question had been allotted in the name of plaintiff no.1 and eight others jointly with respect to which there was no partition. This fact had been admitted by the plaintiffs in their deposition. All these aspects had been considered by the Trial Court and the First Appellate Court but the High Court failed to consider the oral as also the documentary evidence. Only on the basis of the two sale deeds and one mortgage deed, which relate to different piece and parcels of land, the High Court recorded a perverse finding that oral partition had taken place. It also did not deal with the other findings recorded by the Courts below.

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In view of the above discussion and on the findings recorded above, the impugned judgment cannot be sustained as it not only does not conform to the scope of Section 100 of the Code of Civil Procedure, 1908 but also as it was perverse on appreciated evidence, and also ignoring material evidence.

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From the above stated legal position and also considering the

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fact that the specific issue was framed with regard to non-joinder of necessary party despite this the plaintiff has not taken any step to implead other sisters as party to the case and only on the ground that they have refused for partition has not arrayed other sisters as party to the case, which is fatal one and learned first appellate Court has recorded its finding that there is non-joinder of necessary party, which cannot be said to suffer from

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perversity, illegality and warrants interference by this Court. Accordingly, the substantial question of law No. 2 framed by this Court is decided against the plaintiff and in favour of the defendants.

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Findings on substantial question of law No. (i)

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Both the Courts below have recorded their finding that the appellant being the daughter is coparcener and the suit property described in the Schedule A is ancestral property. This finding is in accordance with the law laid down by the Hon’ble Supreme Court in case of Vinita Sharma vs. Rakesh Sharma {(2020) 9 SCC 1} and in case of Prashant Kumar Sahoo vs. Charulata Sahoo {(2023) 9 SCC 1}. So far as the finding recorded by the trial Court that the suit property described in Schedule B is generated from the nucleus of the suit property described in Schedule A has been set aside by the appellate Court, the order of the Appellate Court setting aside the finding of the trial Court is in conformity with the law laid down by the Hon’ble Supreme Court in case of Bhagwat

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Sharan vs Purshottam {(2020) 6 SCC 387}. The learned first Appellate Court has rightly recorded its finding that the plaintiff has not led any evidence to substantiate that the property described in Schedule B is generated from the nucleus of the ancestral property though burden lies upon her as held by the Hon’ble Supreme Court in 13, 18, 21 and 28 of Bhagwat (supra) which read as under:-

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Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.

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However, there is no material on record to show that the properties belonged to an HUF. They may have been joint properties but merely on the basis of the recitals in the mortgage deed they cannot be said to be a joint family property. It appears that by another mortgage deed dated 26.11.1946, the value of the mortgaged properties was enhanced to Rs. 45,000/-, and in addition to the 5 houses, one oil mill at Pachhar was also mortgaged. Seth Budhmal filed a suit (Exh.P.4) against Hari Ram, Brij Mohan, Rameshwar Lal, Radha Krishan, Nathu Lal etc., for realisation of the mortgage money under the said mortgage deed. In para 6 and 8 of the plaint it was averred as follows :-

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“6. That, the defendants at the time of execution of aforesaid documents constituted a Trading Joint Hindu Family and of which all major members personally and minor members through their head of the branch were represented in the execution of mortgage deeds.

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That, minors mentioned in the documents have now attained majority. Therefore, they have been impleaded in person as defendants. Their liability is limited to the extent of property of Joint Hindu Family and personal dealing. Defendant No.1 to 3 are personally and in the capacity of head of their branch are made in as defendants.”

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An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In paragraph 6 the averment was that the defendants constituted trading Joint Hindu Family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out

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of this nucleus. In our opinion, this has not been proved in the present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in our view there is no clear-cut admission. The allegation made was that the minors were represented by defendant nos. 1-3, who were head of their respective branches. In reply to this it was stated that defendant nos.1-3 were neither the head or the karta, nor the mortgage transaction was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint family.

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As far as the agricultural lands are concerned the trial court decreed the suit in respect of the agricultural lands on the basis that Madhav Prashad and his brother Umrao Lal and their successors constituted an HUF. The said lands having been bought out of the funds of the HUF would be treated to be the property of the HUF, even though they may have been entered in the name of any other person. In view of the above discussion, and the fact that we have held that the plaintiff has failed to prove that there is an HUF, we are not inclined to agree with the finding of the trial court.

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Accordingly the substantial question of law is answered against the plaintiff and in favour of defendants.

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Findings on substantial question of law No. (iii)

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The learned Appellate Court after appreciating the evidence, material and considering the law on the subject has rightly rejected the suit of the appellant for grant of partition and declaration as the appellant has not impleaded necessary parties to the suit, i.e. all the sisters and in their absence no effective partition with metes and bounds can be ordered, therefore, the findings of learned appellate Court cannot be held to suffer from perversity, illegality which warrants interference by this Court. Accordingly, the substantial question of law is answered against the plaintiff and in favour of the defendants.

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