Dismissed

Sat Pal v. Raj Kumari and Others

Punjab & Haryana HC21 Mar 2014RSA/1607/1985

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed a regular second appeal regarding partition of a dwelling house. The court held that a previous consent decree for specific performance in the same documents had become final, barring the plaintiff's claim for partition as per the terms of the earlier judgment conditional on that decree.

What did the court decide?

The preliminary decree for partition and rendition of accounts in favour of Raj Kumari was effectively barred as pending on the finality of the specific performance decree.

Sat Pal Vs Raj Kumari and Others — Partition | Punjab & Haryana HC (2014)

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R. S. A. No. 1607 of 1985 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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Sr. No. 304

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Case No. : R. S. A. No. 1607 of 1985 Date of Decision : March 21, 2014

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Raj Kumari and others .... Respondents

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CORAM : HON'BLE MR. JUSTICE ARUN PALLI.

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Present : Ms. Deepali Puri, Advocate for the appellant.

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Mr. Shailendra Sharma, Advocate for the respondents.

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ARUN PALLI, J. (Oral) :

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Late Satpal – defendant no. 1, who died during the pendency of the appeal, being unsuccessful before the two courts, approached this Court vide the present Regular Second Appeal.

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A brief narration of facts, to the extent they are essential and expedient, would be in order.

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Respondent no. 1 – Raj Kumari filed a suit for partition by metes and bounds, of a double-storeyed house, situated in Mohalla Sarai,

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Monika 2014.03.24 16:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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R. S. A. No. 1607 of 1985 2

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Pathankot, by separating her 1/7^th share in the said house. She also claimed a decree for rendition of accounts against defendant no. 1, with respect to the rented portion of the house in question, rent whereof was alleged to have been received and retained by defendant no. 1.

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The case set out by Raj Kumari (plaintiff) in the suit was that Shiv Ram i.e. her father was the sole owner of the suit property. He had since died, he was survived by the plaintiff and defendants no. 1 to 6. The parties to the suit were stated to be the sole heirs of Shiv Ram and thus, succeeded to his estate in equal shares. Plaintiff, thus, was the owner to the extent of 1/7^th share in the suit property and the parties to the suit were in joint possession. Since the plaintiff did not want to keep the suit property as joint between her and the heirs of Shiv Ram, thus, a suit was filed for separate possession by way of partition.

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Only the appellant (defendant no. 1) contested the suit. It was not disputed that the suit property was exclusively owned by Shiv Ram. The relationship of the plaintiff viz-a-viz defendants was also not disputed. This was also not an issue that Shiv Ram died intestate. Thus, the plaintiff as well as the defendants succeeded to the estate of Shiv Ram in equal shares. Resultantly, there was no dispute that the plaintiff Raj Kumari was entitled to 1/7^th share in the suit property being the daughter of Shiv Ram. The limited ground, on which the appellant sought to contest the claim of

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the plaintiff, was that in fact, defendants no. 2 to 5 had executed an

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R. S. A. No. 1607 of 1985 3

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agreement to sell dated 12.07.1980, in his favour qua their share, for a sum of Rs.30,400/-. It was maintained that certain amounts were also paid by the appellant to defendants no. 2 to 5 pursuant to the said agreement. It was stated that defendants no. 2 to 5, at the time of execution of the agreement, had assured defendant no. 1 that the plaintiff and defendant no. 6 had already given up their rights in the suit property in favour of defendant no. 1 to 5. Additionally, defendants no. 2 to 5 also took the responsibility to persuade the plaintiff and defendant no. 6 to accept the agreement in question and the arrangement set out therein. It was alleged that the plaintiff as well as defendant no. 6 had indeed accepted the said arrangement and thus, had waived their rights.

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In the wake of respective pleadings of the parties, the learned

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trial court was pleased to frame the following issues :-

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“1. Whether the plaintiff has 1/7^th share in the house in dispute ? OPP

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2. Whether the plaintiff is estopped by her act and conduct from filing this suit ? OPP

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3. Whether the suit is collusive between the plaintiff and defendants no. 2 to 5. If so, its effects ? OPD

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4. Whether there is valid agreement

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Monika 2014.03.24 16:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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R. S. A. No. 1607 of 1985 4

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between defendants no. 2 to 5 and

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defendant no. 1. If so, its effects on the rights of the plaintiff ? OPD

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5. Whether the plaintiff is entitled to the partition of the property by metes and bounds as claimed ? OPP

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6. Whether the plaintiff is entitled to mesne profits ?

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7. If so, how much and from whom ? OPP Relief. ”

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The learned trial court, on analysis of the matter and the material on record, found that insofar as the title of the plaintiff qua 1/7^th

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share in the suit property, there was no dispute. The short ground, on which the claim of the plaintiff was sought to be resisted by defendant no. 1, was the agreement to sell dated 12.07.1980. The execution of the agreement was found to have been proved by the learned trial court. The only issue left to be determined was with regard to the enforceability of the said agreement viz-a-viz the plaintiff and whether the same was binding on her. On consideration of the material and evidence on record, on this limited issue, learned trial court was of the view that there was nothing discernible from the agreement in question as to how the parties thereto would satisfy

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the claim of the plaintiff and defendant no. 6. There was nothing recited in

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R. S. A. No. 1607 of 1985 5

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the said document as to how the plaintiff had agreed to give up her right in the suit property in favour of the defendants. It was further observed that if at all she had indeed agreed to give up her claim in the suit property, then the appellant would have certainly taken her in confidence and obtained her signatures or thumb impressions on the said agreement. So much so, none of the other defendants no. 2 to 5 were examined by the appellant in support of his case. Thus, it was recorded that the appellant possibly thought that since the plaintiff was already married, she would not raise any objection to the transfer of the property in his favour and it is for that reason alone, no plausible explanation was forthcoming to show that she had actually given up her share in the suit property. Resultantly, the learned trial court recorded that the validity of the document (Ex.D-1) i.e. agreement dated 12.07.1980 is surrounded by suspicious circumstances and the same has no effect on the rights of the plaintiff viz-a-viz suit property. Accordingly, the suit was decreed vide judgment and decree dated 16.10.1983. A preliminary decree for partition of the house in question was passed. And also a decree for rendition of accounts with respect to the rented portion of the house and also for rendition of accounts with respect to the rented portion of the house in her favour.

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The appellant, being aggrieved against the judgment and decree dated 16.10.1983, preferred an appeal. The learned first appellate court, during the course of consideration of the matter, referred to the

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R. S. A. No. 1607 of 1985 6

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provisions of Section 23 of the Hindu Succession Act and a decision in

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Vemavarkar Mailikerjuna Rao vs. Chaturvendula Sivasankara

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Prasad and others reported as AIR 1981 A. P. 84 . Accordingly, the learned Court observed that in view of provisions of Section 23, in a case of dwelling house of a joint family left behind by a Hindu intestate, his or her female heirs can claim partition thereof only after the male heirs chose to effect a division of their respective shares. Thus, a choice of partition of a dwelling house is confined to male heirs only. It was thus observed that the plaintiff Raj Kumari, being a female heir, could not claim partition of the suit property. However, she was entitled to a decree for rendition of accounts.

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Having said that, the learned first appellate court took cognizance of another crucial aspect of the matter. In a separate suit filed by the appellant against defendants no. 2 to 5, a decree for specific performance of the agreement to sell dated 12.07.1980 was passed in his favour, by the same Court by a judgment and decree of even date i.e. 03.01.1985. The resultant effect of the said decree was that the appellant Sat Pal had acquired 4/7^th share in the suit property i.e. pertaining to the share of Rakesh Kumar, Sudesh Kumar, Akshay Kumar and Rattan Dai and thus, the only other co-sharers, which could then emerge, were Raj Kumari and her sister Veena Kumari (defendant no. 6) and of course, the appellant/defendant no. 1. In reference to a decision in the case of

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R. S. A. No. 1607 of 1985 7

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Hemalata Deil vs. Umasankari Moharana and others reported as 1975 IR (Orissa) 208 , the learned Court observed that in the eventuality of a Hindu male, dying and leaving only one male heir and the other female heirs, the female heirs were entitled to claim partition in the joint family dwelling house. It was held that Section 23 has no bar in such a case. Resultantly, the appeal was dismissed, subject to the arrangement as is being referred to hereafter, the same reads as thus :-

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“In the result, this appeal is dismissed and will remain dismissed only if the decree passed by me in Civil Appeal No. 182 instituted on 7.8.84 titled Sat Pal vs. Rakesh Kumar etc. remains in tact and reaches the stage of finality and in case that decree is reversed, then the preliminary decree for partition passed by the trial court in favour of Raj Kumari will go and only the preliminary decree for rendition of accounts in favour of Raj Kumari will remain. So long as the decree passed by me today in Civil Appeal No. 182 instituted on 7.8.84 titled Sat Pal vs. Rakesh Kumar etc. remains pending in appeal, Raj Kumari will not apply for final decree and it is only if the decree passed by me in

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R. S. A. No. 1607 of 1985 8

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C. A. No. 182 instituted on 7.8.84 titled Sat Pal vs. Rakesh Kumar etc. is affirmed and achieves finality that Raj Kumari will apply for final decree. No order as to costs.”

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As is made out from the records, two appeals were filed before this Court. One by defendants no. 2 to 5 i.e. R. S. A. No. 1203 of 1985 , against the judgment and decree dated 03.01.1985, vide which the suit of the appellant for specific performance of the agreement to sell was decreed. The other appeal, arising out of the present suit, is the one, this Court is currently seized of. Vide order dated 07.10.1985, this appeal was admitted and was ordered to be heard after the decision in R. S. A. No. 1203 of 1985 .

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I had requisitioned the records of the said appeal (R. S. A. No. 1203 of 1985) and it transpires that the same was dismissed by this Court vide a detailed judgment dated 13.07.2010. Thus, the judgment and decree passed in favour of the appellant, for specific performance of the agreement, was affirmed.

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I have heard counsel for the parties and perused the records.

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Counsel for the appellant fairly states that as such, no fault can

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be found with the judgment and decree impugned in the present appeal. She contends that in fact, the fate of the present appeal was subject to the decision to be arrived at by this Court in R. S. A. No. 1203 of 1985 . That

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is how this appeal was admitted and ordered to be heard after the decision

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R. S. A. No. 1607 of 1985 9

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in the said matter. The said appeal, having been dismissed by this Court on 13.07.2010, the decision in the present case is a fate accompli.

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Counsel for the parties state that the judgment and decree passed by this Court on 13.07.2010 in connected RSA was not challenged any further by defendants no. 2 to 5. It appears to be actually so since the said judgment and decree was passed 3½ years ago and the appellant, who was decree-holder in the said appeal, has not received any notice in this regard.

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This being so, the present appeal is dismissed, in view of the fact that the judgment and decree dated 13.07.2010 passed by this Court was not challenged any further and resultantly, a decree for specific performance of the agreement, passed in favour of the appellant in the said proceedings, has attained finality between the said parties.

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March 21, 2014

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monika

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( ARUN PALLI ) JUDGE

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Monika 2014.03.24 16:38 I attest to the accuracy and integrity of this document High Court Chandigarh

Sat Pal v. Raj Kumari and Others

Case brief

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Sat Pal v. Raj Kumari and Others

Case brief

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