The High Court dismissed a second appeal against the affirmation of Lower Appellate decision. The court upheld finding that joint family property devolved into equal shares upon probate rather than survivorship, rejecting appellant claim of coparcenary status.
Regular Second Appeal dismissed; parties to bear own costs; pending applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.496 of 2004. Reserved on : 03.05.2017. Decided on: 22.05.2017.
Nidhu Ram ...Appellant.
Versus
Krishna Devi & Ors. …Respondents.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Vijay Chaudhary, Advocate.
For the respondents : Mr. G.R. Palsra, Advocate, for respondents No.2, 5 & 6.
Mr. R.L. Chaudhary, Advocate, for LRs No.4 (a) to 4 (d).
Chander Bhusan Barowalia, Judge.
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree, dated 3.8.2004, passed by the learned District Judge, Mandi, District Mandi, (H.P), in Civil Appeal No.131 of 2002, whereby the learned lower Appellate Court has affirmed the judgment and decree passed by learned Sub Judge, 1st Class, Court No.2, Mandi, District Mandi, passed in Civil Suit No.507/99/95, dated 6.9.2002.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
and also for possession against the respondents/defendants (hereinafter referred to as ‘defendants’) alleging that land comprised in Khata/Khatauni No.2/2, Khasra Nos.69, 77, 78, 84, 99, 128, 129, 130, 153 and 154 kita 10, measuring 11-10-13 bighas, situated in Village Chadyana, Tehsil Sadar, District Mandi, H.P, (hereinafter referred to as ‘suit land’) is shown in ownership and possession of the plaintiffs to the extent of 1/6th share each and defendants No.1 to 4 to the extent of 1/6th share each. The land was earlier held by their grandfather Devi Ditta from whom it was succeeded by Loharu. Loharu died in the year 1973 leaving behind the plaintiffs and defendants No.1 to 4 and as such, the share of plaintiffs was 7/18 each and the share of defendants No.1 to 4 were 1/18 each. The plaintiffs have also pleaded that they are governed by Mitaksra School of Hindu law. The entries with regard to the suit property in the revenue record are wrong, illegal and void. It is further averred that the plaintiff taking undue advantage of the revenue entries, defendant No.4 sold her 1/6th share to defendants No.5 & 6, vide registered Sale Deed No.842, dated 26.7.1994 and the same is wrong, illegal and void. The plaintiffs have also took the plea of adverse possession on the ground that since they have been in possession of the entire suit land and their possession is open, peaceful, continuous, uninterrupted and hostile to the title of defendants No.1 to
4 and as such, they have become owners qua the share of defendants No.1 to 4 by perfection of their title by adverse possession. The sale of
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1/6th share by defendant No.4 in favour of defendant No.5 and 6 is null and void.
2. Whether the sale deed dated 26.7.1994 executed by the defendant No.4 in favour of defendants No.5 & 6 is wrong, illegal and void ? OPP.
3. Whether the plaintiffs have become owners of the share of defendants No.1 to 4 in the suit land by way of adverse possession ? OPP.
4. Whether the defendants No.5 & 6 are bonafide purchaser of the suit land for consideration ? OPD.
5. Whether the plaintiffs are estopped for filing the suit by their act and conduct ? OPD.
6. Whether the suit is time barred ? OPD.
7. Whether the defendants are entitled to the special costs under Section 35-A CPC ? OPD.
4
8. Relief.”
“ Whether the first Appellate Court erred in holding that the defendants had equal shares alongwith the plaintiffs in the property left by Loharu after holding that such property was coparcenary property in the hands of Loharu ?”
5
hand, learned counsel appearing on behalf of defendants No.2, 5 and 6 has argued that the defendants were having right in the property being daughters of late Loharu and so, they are owners of the land and the revenue entry rightly reflected shown as their owners to their share. He has further argued that deceased Soma (defendant No.4) whose legal representatives are already on record was having a right in the property and she was competent to sale his share.
succession.
record in detail.
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the other hand, it is the case of the plaintiffs that they are in possession of their share in the suit land. If it is proved that defendants No.1 to 4 are in possession of 1/6th share each in the suit land, it can be taken that they had become owners of their share in the suit land by perfection of their title by adverse possession. The defendants being owner-in-possession of 1/6th share each and had been openly claiming themselves to be so, the suit of the plaintiffs that defendants No.1 to 4 are owners of 1/18th share each in the suit property can be said to be barred by limitation. It has also come on record that defendants No.1 to 4 are in possession of the suit land in view of the revenue entries entered in their favour as successor of Loharu, as his daughters. PW-1 Nidhu Ram (plaintiff) while appearing in the witness box has no where stated that he constituted a Joint Hindu Family coparcenary alongwith other coparceners. There is nothing on record to suggest that the plaintiffs constituted Joint Hindu Family coparcenary in food and worship alongwith their father at the time, when late Loharu Ram, died in the year 1973. PW-3 Alam Singh and PW-4 Jai Ram, have not whispered even a single word about nature of the suit property, as the suit property was inherited by the plaintiffs from their father Loharu Ram, does not mean that it is Joint Hindu Family Coparcenary property. Since plaintiff No.1 after attestation of mutation of inheritance Ex.PG, did not make any grievance anywhere since the year 1976 till the year 1995, when the present suit was filed, therefore, it can safely be concluded
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that the plaintiffs by virtue of their act or omission intentionally caused or permitted defendants No.1 to 4 to believe that they had inherited their respective share, as per their rights after the death of their father in the year 1973. There is nothing on record with respect to adverse possession on behalf of the plaintiff on the suit land, which is mutated in the name of defendants. No ingredients of adverse possession are proved on record. Even PW-4 in his cross-examination, could not say whether the property sold to defendants No.5 and 6 have been delivered to them or not. Coming to the amendments of Hindu Succession Act, daughters are coparceners alongwith male member and there is no difference between female and male and female can always ask for the partition to be a member of Joint Hindu Family, which is governed by Mitaksara School of Hindu Law and she has a share in that property. There is nothing on record to show that the property devolved upon the plaintiffs as coparceners after the death of Devi Ditta, rather the revenue entries supports the case of defendants.
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the learned Courts below are just, reasoned and after appreciating the evidence, which has come on record to its true perspective and law has
been applied correctly. Hence, needs no interference by this Court.
(Chander Bhusan Barowalia)
22nd May, 2017 Judge (CS)
3 issues framed by the court
Whether the first Appellate Court erred in holding that the defendants had equal shares along with the plaintiffs in the property left by Loharu?
Whether the lower courts correctly held that the property was not coparcenary property governed by Mitaksra law?
Whether the substantive question of law regarding the nature of the property devolution was answered correctly by the appellate court?
1 provisions across 1 enactments
Nidhu Ram
Krishna Devi
Respondents No. 2 to 4
Respondents No. 5 and 6
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
