Partly allowed

Madangopal and Ors. v. Sagar @ Bharatkumar and Ors.

Rajasthan HC9 Aug 2019CR/216/2012

Case brief

AI extract

What is this about?

In a S.B. Civil Revision Petition, the High Court held that the trial court was wrong not to decide on the maintainability of the suit for partition by a grandson during his father's lifetime. The lower court was directed to decide this specific legal question afresh before proceeding to other factual issues raised in the suit.

What did the court decide?

The impugned order refusing to decide Issue No.10 was set aside; the matter was remanded to the trial court to decide the maintainability of the suit on merits as a question of law.

Madangopal and Ors. Vs Sagar @ Bharatkumar and Ors. — Partition | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Revision Petition No. 216/2012

¶3

Madangopal s/o Mohanlal Ji Dhandiya aged 65 years

¶4

Lalit Kumar Dhandiya s/o Madangopal aged 44 years

¶5

Mahesh Kumar Dhandiya s/o Madangopal aged 40 years Sakinaan Plot No.618, Residency Road, Jodhpur

¶6

----Petitioners

¶7

Versus

¶8

Sagar @ Bharatkumar s/o Satyanarayan Ji Dhandiya aged 26 years, Sakin Bhawani Niwas, 10^th Pal Road, Jodhpur.

¶9

Satyanarayan s/o Mohanlal Ji Dhandiya

¶10

Smt. Santosh w/o Shri Satyanarayan Ji Dhandiya Both Sakinaan Bhawani Niwas, 10^th Pal Road, Jodhpur.

¶11

Smt. Shyama Devi w/o Om Prakash Ji Bhati, r/o Indragandhi Nahar Colony, Jaisalmer.

¶12

Smt. Pushpa w/o Tulsiram Ji Bhati, r/o Gali No.8, Milkman Collony, Palroad, Jodhpur.

¶13

----Respondents

¶14

For Petitioner(s) : Mr. S.C. Maloo For Respondent(s) : Mr. Sajjan Singh Mr.K.N. Prajapat

¶15

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

¶16

Judgment

¶17

Reportable

¶18

Reserved on 02/08/2019 Pronounced on 09/08/2019

¶19

This is second round of litigation by the petitioners in revision preferred before this Court against the order dated 20.10.2012, whereby learned Additional District Judge No.2, Jodhpur Metropolitan in a civil suit preferred for partition by plaintiff-Sagar alias Bharat Kumar has refused to decide issues No.5, 10, 11, 12, 13 & 15 as preliminary issues and has held that

¶20

(2 of 9)

¶21

[CR-216/2012]

¶22

the same involve questions of fact and law and shall be decided after recording evidence.

¶23

Brief facts, which require to be noted for disposal of the petition, are that the plaintiff has preferred a suit for partition of a coparcenary property, which was later on amended. As per the amended plaint, it is stated that the defendants No.1, 2, 3 and 4 and the plaintiff are members of a Joint Hindu Family and are coparceners.

¶24

It is stated that Late Mal Ji was the ancestor of all the parties, who expired leaving behind two brothers, Mohan Lal and Kanhaiya Lal in 1960. The property of Mal Ji being an inherited property jointly owned was divided by oral partition between Mohan Lal and Kanhaiya Lal on 03.11.1964. The property which came in possession of Mohan Lal and his children is the subject matter of the present suit.

¶25

Mohan Lal had two sons, Madangopal and Satyanarayan. Plaintiff-Sagar alias Bharat Kumar s/o Satyanarayan and sons of Madangopal, namely, Lalit Kumar and Mahesh Kumar acquired property rights in the Hindu coparcenary from the date of their birth in the property of their grandfather Mohan Lal. It is stated that after the death of Mal Ji, the shop by the name of “Mal Ji Ghee Wala” was being run jointly by the family as a commercial establishment. On the basis of the coparcenary business, four shops in plot No.617 at Laxmi Niwas were purchased in the name of Madangopal Ji on 12.07.1966, which was also part of the joint family. On 03.04.1968, another plot No.618 Jagdamba Bhawan was purchased in the name of Mohanlal Ji by the joint family income, and the construction was done on the said plot from the income of the joint family. On 26.07.1969,

¶26

(3 of 9)

¶27

[CR-216/2012]

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plot No.68 Koks Kutir was purchased in the name of Mohan Lal on 25.06.1991; half portion of plot No.75 was purchased from Shivgiri for which a written agreement was entered into and a specific performance suit was preferred, which was decreed in favour of Mohan Lal on 05.03.1993. It was stated that Mohan Lal expired on 20.03.1999 and Madangopal and Satyanarayan were impleaded as legal representatives in the execution application. Other properties were also mentioned in the plaint which were purchased in the name of Mohan Lal, which included a farm house by the name of Bhawani Krishi Farm House at Village Ajeet in the name of Mohan Lal, Madangopal and Satyanarayan. Land bearing khasra No.62/43 to 49 was purchased by Mohan Lal in Shikargarh admeasuring 7 bighas. 73 bighas 2 biswas of land was purchased in Brahmano ki Jajiwal in the name of Mohan Lal by the joint family. 160 bighas 18 biswas of agricultural land was purchased by the family jointly in the name of Adarsh Ghachiyan Dugdh Utpadak Sahakari Samiti Limited. Half bigha of land was purchased at Jodhpur Chopasani Chokha by the joint family in the name of Mohan Lal, and there were moveable properties, which were also mentioned to be in the name of joint family.

¶29

With the said averments, demand was raised by the plaintiff for partition. It was also stated that one plot No.618 which belonged to the joint family was given out in Will by Mohan Lal in favour of Madangopal and that Will was illegal and would have no affect on the coparcenary property of the joint family. Certain other averments were also made in the plaint in relation to the properties.

¶30

(4 of 9)

¶31

[CR-216/2012]

¶32

For the purpose of present petition, suffice it to state that a written statement was filed by defendant No.1 Madangopal and several facts were denied. Defendants No. 2 and 3 adopted the written statement filed by defendant No.1, but later on filed amended written statement. Defendants No.4 and 5 have admitted the averments of the plaintiff. Rejoinder was also filed and thereafter on 26.08.2004, nine issues were framed, whereafter the matter came up before this Court on framing of issues, and in terms of the directions issued by this Court, issues No.10 to 15 were also framed.

¶33

On issues No.5, 10, 11, 12, 13 and 15, arguments were heard treating them as legal issues and order was passed on 04.05.2009, which was challenged in revision petition No.188/2009, which was set aside by the High Court. The matter was remitted to the trial court for decision afresh after referring to the facts of the case in correct legal perspective, whereafter the order was passed by the trial court dated 20.10.2012, as noted above.

¶34

Issues No.5, 10, 11, 12, 13 and 15 were examined by the trial court. The said issues No.5, 10, 11, 12, 13 and 15 read as under:-

¶35

“ (05) vk;k ey th dh iqf=;ksa dks oknh us i{kdkj ugha cuk;k gS] bldk izHkko ?

¶36

¼izfroknh½

¶37

(10) vk;k oknh dk okn iks’k.kh; ugha gksus ds dkj.k dkfcy [kkfjt gS ?

¶38

¼izfroknh la[;k 1 ls 3½

¶39

(11) vk;k ey th ?kh okyk la;qDr Hkkxhnkjh QeZ gS] ftlds fo/kVu dk vuqrks’k oknh }kjk ekaxuk vfuok;Z Fkk ?

¶40

¼izfroknh la[;k 1 ls 3½

¶41

(5 of 9)

¶42

[CR-216/2012]

¶43

(12) vk;k dUgS;kyky ds reke okjhlku vko”;d i{kdkj gSa] bldk okn ij izHkko ?

¶44

¼izfroknh la[;k 1 ls 3½

¶45

(13) vk;k tokcnkok dh en la[;k 12 esa of.kZrkuqlkj vkn”kZ ?kkafp;ku nqX/k mRiknu lgdkjh lfefr o muds reke lnL;x.k vko”;d i{kdkj gSa] bldk okn ij izHkko ?

¶46

¼izfroknh la[;k 1 ls 3½ (15) vk;k tokcnkok ds ifjf”k’V - 1 esa in la[;k 1 esa of.kZrkuqlkj oknxzLr laifRr ds lacf/kr [kjhnnjku vko”;d i{kdkj gksus ls oknh dk okn iks’k.kh; a ugha gS ?

¶47

¼izfroknh la[;k 1 ls 3½ ”

¶48

Issue No.5 was as to what will be the effect of not impleading the daughters of Mal Ji in the suit. Issue No.10 was that the suit preferred by the plaintiff was not maintainable and was liable to be rejected. Issue No.11 was that Mal Ji Ghee Wala was a Joint Partnership Firm and it was necessary for the plaintiff to pray for dissolution of the Firm. Issue No.12 was whether the heirs of Kanhaiya Lal were necessary parties to the suit and what would be its effect. Issue No.13 was whether the members of the Adarsh Ghachiyan Dudgh Utpadan Sahakari Samiti were necessary parties to the suit and the effect thereof. Issue No.15 was whether the subsequent purchasers of the property as mentioned in the written statement were necessary parties to the suit and because of their non-impleadment the suit was not maintainable.

¶49

Learned counsel appearing for the petitioners submitted that the trial court has wrongly held that there are mixed questions of facts and law, which required to be examined after recording evidence and submitted that all the issues were legal issues and were required to be decided first and the trial court has failed to perform its duty and has failed to follow the order passed

¶50

(6 of 9)

¶51

[CR-216/2012]

¶52

by this Court dated 26.10.2009 in the earlier revision petition No.188/2009.

¶53

Learned counsel submitted that the question regarding maintainability of the suit for partition by the plaintiff was a pure question of law and required to be decided.

¶54

Learned counsel submitted that the plaintiff could not have brought the suit for partition in view of the fact that his father was alive.

¶55

Learned counsel submitted that after the amendment of Section 8 of the Hindu Succession Act, the son of a son has to be excluded under Section 8 to right of inheritance as his father acquires the property as Karta of his own Undivided Family, and as there were daughters of Mal Ji, provisions of Section 8 would apply and the suit was not maintainable. Thus, the plaintiff was not a coparcener to the property. The issue was therefore required to be decided at the stage itself, and there was no evidence required to be noticed for the said purpose.

¶56

Learned counsel relied on the following judgments:

¶57

Bhanwar Singh Vs. Puran & Ors., 2008(1) WLC 494 (SC); Anar Devi & Ors. Vs. Parmeshwari Devi & Ors., 2006(2) WLC 787 (SC); Commissioner of Wealth Tax, Kanpur & Ors. Vs. Chander Sen & Ors., AIR 1986 SC 1753; Uttam Vs. Saubhag Singh & Ors., AIR 2016 SC 1169; Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum & Ors., AIR 1978 SC 1239; Shyam Narayan Prasad Vs. Krishna Prasad & Ors., (2018) 7 SCC 646; Mahendra Kumar Vs. Mohd. Salim & Ors., 2014 (2) CDR 588 (Raj.).

¶58

Per contra , learned counsel appearing for the respondents submitted that no case for interference is called for in

¶59

(7 of 9)

¶60

[CR-216/2012]

¶61

the order dated 20.10.2012, as the order does not decide any issue, but defers the question to be examined after recording evidence in relation to the issues No.5, 10, 11, 12, 13 and 15 as the court has reached to the conclusion that such question can be only examined after evidence is recorded.

¶62

Learned counsel submitted that the judgments cited by the petitioners are actually in favour of the respondents and it cannot be said that the suit for partition was not maintainable at the behest of the plaintiff. Learned counsel submitted that so far as the present case is concerned, it related to coparcenary property rights and as per Section 6 of the Succession Act the suit for partition was maintainable by the grandson in relation to his grandfather’s property. It is submitted that Section 8 is not applicable.

¶63

I have considered the submissions.

¶64

This petition assails the order dated 20.10.2012 whereby Additional District Judge No.2, Jodhpur Metropolitan has, after discussing at length the aspects relating to the various issues, deferred to give its decision on merits in relation to the said issues, holding that the said issues are required to be decided after leading evidence and examining the case in light of the said evidence, and therefore, without deciding the said issues, it cannot be said that the suit for partition is not maintainable by the plaintiff.

¶65

I have carefully gone through the issues which the court below has deferred and find that so far as issue No.5 is concerned, it relates to question of the effect of non-impleadment of the daughters of Mal Ji. Thus, the trial court has rightly deferred the matter as evidence has to come on record in relation of the

¶66

(8 of 9)

¶67

[CR-216/2012]

¶68

daughters of Mal Ji and with regard to the property of Mohan Lal and Kanhaiya Lal, evidence would therefore be considered to see whether the daughters of Mal Ji had any interest devolved to the property in question.

¶69

As regards issue No.10, this Court finds that the question of maintainability of the suit for partition by the plaintiff as grandson was required to be examined. To the said extent, the trial court was required to give its findings, whether Section 6 or Section 8 will have an application and if so what was the right for which suit was maintainable. It is a pure question of law whether a suit can be filed by the plaintiff for partition during the lifetime of his father, and to the said extent, the order of the court below in not deciding the said issue was not justified. Once this Court has directed the trial court to decide the said issue and earlier it has itself treated the issue as a legal issue, there was no occasion of not giving its findings on the said issue finally.

¶70

This Court refrains from giving findings on the said aspect regarding maintainability and deem it appropriate to remand the matter back to the trial court to decide the said issue in light of the judgments which have been noted above.

¶71

So far as issues No.11, 12, 13 and 15 are concerned, this Court is satisfied that the issues are not pure legal issues, but would depend on the factual aspects and the evidence which may be recorded. Thus, to the said extent, the order of the trial court in deferring the matter on the said issues cannot be objected to as in all the said aspects, the factual aspects would have to be dealt with, as has been noticed in the impugned order relating to issues No.11, 12, 13 and 15.

¶72

(9 of 9)

¶73

[CR-216/2012]

¶74

Thus, keeping all the arguments raised before this Court open for adjudication and findings for the concerned court, this revision petition is partly allowed to the extent of setting the impugned order with regard to issue No.10 for which the case is directed to be heard afresh by the trial court on merits and after deciding the question, if the court reaches to the conclusion that the suit for partition is maintainable by the plaintiff, it shall proceed to decide the other issues.

¶75

The revision petition is accordingly partly allowed. The record, which has been called before this Court, is directed to be sent back today. Taking into consideration that the matter is quite old, the trial court is directed to decide issue No.5 first within a period of two months from today. All pending applications stand disposed of.

¶76

(SANJEEV PRAKASH SHARMA),J

¶77

SKant/-

Madangopal and Ors. v. Sagar @ Bharatkumar and Ors.

Case brief

What is this about?

What did the court decide?

Madangopal and Ors. v. Sagar @ Bharatkumar and Ors.

Case brief

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