HIGH COURT OF CHHATTISGARH v. Rohit Kumar

1 - Rohit Kumar S/o Bahruram Sahu R/o Village - Sonaidongri, Post Office Sonaidongari, Tahsil Gurur, District Durg Chhattisgarh. (Plaintiff), District : Durg, Chhattisgarh 2 - Jagatram (Dead) Through Lrs. As Per Honble Court Order Dated 20-06- 2019. 2

2.1 - Deleted (A). (Bharat Yadav) Hoble Court Order Dated 29/04/2022., District : Balod, Chhattisgarh 2.2 - (B). Uday Yadav S/o Late Jagatram Aged About 50 Years R/o Near Sahda Chowk, Gurur, Tahsil Gurur, District Balod Chhattisgarh., District : Balod, Chhattisgarh 2.3 - (C). Daman Yadav S/o Late Jagatram Aged About 48 Years R/o Near Sahda Chowk, Gurur, Tahsil Gurur, District Balod Chhattisgarh., District : Balod, Chhattisgarh 3 - Bharatram S/o Jagatram Yadav, R/o Near Sahda Chowk, Gurur, Tahsil Gurur, District Durg Chhattisgarh., District : Durg, Chhattisgarh 4 - State Of Chhattisgarh Through The District Magistrate, Durg, District Durg Chhattisgarh., District : Durg, Chhattisgarh ---- Respondent(s) For Appellants : Mr. Rajkumar Pali, Advocate For Respondent 2(b) &(c) : Mr. R.S. Patel, Advocate For State : Mr. Kishan Lal Sahu, Dy. Govt. Advocate Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment

1. This is defendant’s first appeal filed under Section 96 of the C.P.C. challenging the judgment and decree dated 16.07.2010 passed by the learned Additional District Judge (F.T.C.), Durg (C.G.) in Civil Suit No. 17-A/2007.

2. The parties are referred to as described in the civil suit before the learned trial Court.

3. The brief facts as reflected from the plaint’s averments are that:-

1. The plaintiff filed the civil suit for declaration, partition and permanent injunction of the land bearing Khasra No.112/1, 112/4 renumbered as 344/1, 344/3 and Khasra No. 335/3 and 335/4 renumbered as 751 admeasuring 0.38, 0.43 and 0.02 Ha. 3 situated at village Gurur, Tahsil – Gurur, District - Durg (hereinafter referred to as ‘the suit land’).

2. It has been further contended that the suit property is an ancestral property which was previously registered in the name of the plaintiff's grandfather, Nandlal and currently it is registered in the revenue records in the name of Bahruram. The plaintiff is son of Bahruram from his first wife, Ansuiya Bai. Bahruram had forcefully ousted the plaintiff and his first wife therefore, they were residing separately at village Sonaidongari. It has been further contended that the suit land has not been affected by the Ceiling Act. Defendant No. 1, without any legitimate reason, sold Khasra number 344/1 to Defendant No.2 on March 7, 2005, in order to deprive the plaintiff of his legitimate right over the suit land. The plaintiff sent a registered notice through his lawyer on 18.2.05 to prevent the sale of the land. However, the sale deed has been executed. It has been further contended that since the suit land has been sold without any authority, therefore, the sale deed is not binding on the plaintiff. He was not even a party to the sale deed. The plaintiff is entitled to one-half of the suit land, which defendant No. 1 had no right to sell. Therefore, he would pray for declaration and possession over one-half of the suit land and defendant No. 2 be restrained from peaceful possession over the suit land.

3. The defendant No. 1 filed his written statement denying the allegations made in the plaint mainly contending that the suit land is not an ancestral property. It was not registered in the 4 name of the plaintiff’s grandfather and it was self acquired property. He has further contended that he had not expelled plaintiff and his mother, they had left him on their own will. A village meeting was also conducted wherein plaintiff’s mother had denied to come back, therefore, he has married to Devtibai. It has been further contended that the son and daughter born out of his wedlock from Devtibai are necessary party to the case, but it has not been made. On this count alone the suit is liable to the dismissed for non-joinder of necessary party. Since, the suit land is self acquired property, therefore, he has right to sell the same. He had sold the suit land for his treatment as he was suffering from paralysis and also from the sale consideration he has repaired his old house. It has been further contended that he has not received any registered notice from the plaintiff for objecting in the sale of the suit property. Defendant No. 2 is sole owner of the suit property by virtue of sale deed executed between them and the plaintiff has no share in the suit, the suit land has been registered in the name of defendant No.2, their suit may be dismissed. Defendant No. 2 and 3 did not file written statement and Defendant No. 4 is State and a formal party to the suit.

4. Learned trial Court on the pleadings of the parties framed as many as 6 issues. The plaintiff to substantiate his case has examined himself as PW-1 and exhibited documents namely Ex.P1 and Ex.P/2 – Form B1, Ex.P3 – Renumbering List, Ex.P4 – sale deed, Ex.P5 – Registered Notice.The defendant No. 1 examined himself 5 as DW-1, DW-2 Motilal and DW-3 Rakesh Sahu and DW-4 Manrakhan and did not exhibit any document.

5. The learned Trial Court on appreciation of oral and documentary evidence available on record decreed the suit in favour of the plaintiff. Learned trial Court while decreeing the suit recorded its finding that the plaintiff is entitled to ½ of the share of the suit land and the sale deed executed by defendant No. 1 to defendant No. 2 for Khasra No. 344/1 area 0.38 Ha is not binding on the plaintiff and restrained the defendant No. 1 from interfering in the peaceful possession of the share of the suit land to the extent of ½ of the suit land. This judgment and decree passed by learned Trial Court is being assailed in this first appeal by defendant No. 1.

6. Learned counsel for the appellants vehemently criticized the judgment and decree passed by the learned trial Court and would submit that the learned trial Court has failed to consider that the suit property is self acquired property, therefore, the respondent No.1 has no right over the suit property. He would further submit that learned trial Court has erred in holding that the sale deed executed by the appellant to the respondent No.2 is without any legal necessity which is contrary to the evidence, therefore, judgment and decree has been passed which is liable to be set aside by this Court. To substantiate his contention he would refer to the judgment of the Hon’ble Supreme Court in case of Uttam vs. Saubhag Singh and Others {(2016) 4 SCC 68}, Ramesh Verma (Dead) through Lrs vs Lajesh Saxena (Dead) by Lrs {(2017) 1 SCC 257} and judgment of High Court of Kerla in case of Sri 6 Kenchegowda vs. K.B. Krishnappa and Others {(2008) 02 KAR CK 0027 and would pray for allowing the appeal.

7. On the other hand, learned counsel for the respondent No. 2(b) & (c) who are the purchasers would support the contention raised by the learned counsel for the appellants and would pray for allowing the appeal.

8. I have heard learned counsel for the parties and perused the record of the Court below with utmost satisfaction.

9. On pleadings of the parties, material placed on record the point to be determined by this Court is :- “Whether the finding recorded by the trial Court that illegitimate sons and daughters are also entitled to inherit the share in the self acquired property of their father and plaintiff is entitled to ½ of the share of the suit property, suffers from perversity and illegality warranting interference by this Court?”

10. To appreciate the point to be determined by this Court, it is expedient for the Court to extract Section 16 of the Hindu Marriage Act which reads as under:-

16. Legitimacy of children of void and voidable marriages.- (1)Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the Marriage Laws the commencement (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2)Where a decree of nullity is granted in respect of a 7 voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3)Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

11. From perusal of Section 16 of the Hindu Marriage Act as per Section 16(3) any child of a marriage which is null and void or which is annulled by decree of nullity under Section 12 will have no right over the property of any person other than the parents. The provisions of Section 16 of the Hindu Marrriage Act has come up for consideration before the Hon’ble Supreme Court in case of Revanasiddappa and Another vs. Mallikarjun and Others {(2023) 10 SCC 1} wherein the 3 judges Bench of Hon’ble Supreme Court has held in paragraph 81 as under:-

81. We now formulate our conclusions in the following terms:- (i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment; (ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if 8 a decree of dissolution had been passed instead of a decree of nullity; (iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub- section (2) to a child born from a voidable PART K marriage which has been annulled, the legislature has stipulated in sub- section (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person; (iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within the ambit of the explanation ‘related by legitimate kinship’ and cannot be regarded as an ‘illegitimate child’ for the purposes of the proviso; (v) Section 6 of the HSA 1956 continues to recognize the institution of a joint Hindu family governed by the Mitakshara law and the concepts of a coparcener, the acquisition of an interest as a coparcener by birth and rights in coparcenary property. By the substitution of Section 6, equal rights have been granted to daughters, in the same manner as sons as indicated by sub-section (1) of Section 6; (vi) Section 6 of the HSA 1956 provides for the devolution of interest in coparcenary property. Prior to the substitution of Section 6 with effect from 9 September 2005 by the Amending Act of 2005, Section 6 stipulated the devolution of interest in a Mitakshara coparcenary property of a male Hindu by survivorship on the surviving members of the coparcenary. The exception to devolution by survivorship was where the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative in Class I claiming through a female relative, in which event the interest of the deceased in a Mitakshara coparcenary property would devolve by testamentary or intestate succession and not by survivorship. In terms of sub-section (3) of Section 6 as amended, on a Hindu dying after the commencement of the Amending Act of 2005 his interest in the property of a Joint Hindu family governed by the Mitakshara law will devolve by testamentary or intestate succession, as the case may be, under the enactment and not by survivorship. As a consequence of the substitution of Section 6, the rule of devolution by 9 testamentary or intestate succession of the interest of a deceased Hindu in the property of a Joint Hindu family governed by Mitakshara law has been made the norm; (vii) Section 8 of the HSA 1956 provides general rules of succession for the devolution of the property of a male Hindu dying intestate. Section 10 provides for the distribution of the property among heirs of Class I of the Schedule. Section 15 stipulates the general rules of succession in the case of female Hindus dying intestate. Section 16 provides for the order of succession and the distribution among heirs of a female Hindu; (viii) While providing for the devolution of the interest of a Hindu in the property of a Joint Hindu family governed by Mitakshara law, dying after the commencement of the Amending Act of 2005 by testamentary or intestate succession, Section 6 (3) lays down a legal fiction namely that ‘the coparcenary property shall be deemed to have been divided as if a partition had taken place’. According to the Explanation, the interest of a Hindu Mitakshara coparcener is deemed to be the share in the property that would have been allotted to him if a partition of the property has taken place immediately before his death irrespective of whether or not he is entitled to claim partition; (ix) For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; and (x) The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above.

12. Hon’ble Supreme Court in case of Raja Gounder and Others vs. 10 M. Sengodan and Others {2024 (12) SCC 350} has also taken the same view.

13. Thus, the finding recorded by the learned trial Court while deciding the issue No. 5 that the plaintiff being grandson is entitled to inherit half of the share of the ancestral property and the children who were born from the wedlock of other woman will be entitled to take share of property owned by defendant No.1 father, is legal, justified and does not warrant interference.

14. To appreciate the further point framed by this Court it is expedient for this Court to go through the evidence adduced before the Trial Court. The plaintiff in his examination-in-chief has reiterated the averment and has stated that the land situated at village Gurur bearing Khasra No. 341/1, 344/2 and 751 area 2.7 Acre is recorded in the name of his grandfather Nandlal, as such it is ancestral property, therefore, he is entitled to get half of ancestral property. The defendant No. 1 has no right to sell land bearing Khasra No. 344/1 area 70 Decimal as he has no legal right to sell the same and has no legal necessity also. The witness was cross- examined but nothing was placed on record to rebut the said evidence. Defendant No. 1 was examined before the trial Court by way of affidavit. The said witness was cross-examined wherein he has admitted that Rohit is his son and divorce has already been taken with his first wife, but he has not submitted any document to substantiate the same. Learned trial Court considering the evidence and materials on record has decreed the suit. The learned trial Court while deciding the issue No. 1 whether the suit 11 property is ancestral property or not has taken into consideration the Ex.P/1 which is Khasra Panchasala (B/1) of the Revenue Records of suit property and the defendant No. 1 has not produced any document to demonstrate that the suit property is his self acquired property though burden lies upon him, accordingly, it has decided the issue No.1 in favour of the plaintiff. The finding recorded by the learned trial Court is in accordance with law laid down by the Hon’ble Supreme Court in case of Bhagwatsharan through Lrs vs Purushottam and Others {2020) 6 SCC 387} wherein Hon’ble Supreme Court has held as under :-

10. At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal vs. Reoti Devi. Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah and Ors. vs. Dulhin Rameshwari Kuer and Ors., it held as follows:- “…. Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.”

11. The Privy Council in Appalaswami v. Suryanarayanamurti held as follows: "The Hindu law upon this aspect of the case is well 12 settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property” The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors.4 In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. this Court held as follows: “The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.” Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Others. and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

15. Similarly, the learned trial Court has decided issue No. 2 in favour of the plaintiff as defendant No. 1 has not produced any evidence or material to substantiate that he is suffering from paralysis which requires medical assistance which has necessitated him to sell the property. The trial Court has also disbelieved the stand taken by the defendant No.1 that for construction of the house he has sold the property which is legal necessity as no evidence was placed on record regarding construction of the house, accordingly, the issue No. 2 has been decided in favour of the plaintiff. This finding is also in accordance with law and materials placed on record which neither suffers from perversity nor illegality warranting interference 13 by this Court.

16. Learned trial Court while deciding the issue No. 3 whether the children born from the wedlock of Bahru Ram and Devnti are necessary party or not has answered it in negative in favour of the plaintiff. Learned trial Court considering the provisions of Hindu Marriage Act, 1956 has recorded its finding that the illegitimate child is entitled to inherit property from their parents only, whereas the plaintiff has filed suit claiming his share from ancestral property therefore, they are not necessary party. Even otherwise, the necessary party is the party without them issue raised cannot be adjudicated properly. In the present case the suit pertains to the ancestral property wherein the children from illegitimate marriage have no right to claim their share in the ancestral property. As such, in their absence the suit can be very well adjudicated by the trial Court. Therefore, the finding recorded by the trial Court with regard to issue No. 3 is also legal, justified and does not suffer from perversity or illegality warranting interference by this Court.

17. The learned trial Court while decreeing the suit has also recorded its finding that since defendant No. 1 has no right to sell the property and the plaintiff has been declared as title holder of the suit property to the extent of ½ share, therefore, the plaintiff is entitled to receive back half of Khasra No. 344/1 admeasuring 0.38 Acre and in the remaining suit property he can claim half of the share. Thus, the findings recorded by the learned trial Court with regard to all the issues are legal, justified and do not warrant interference by this Court. Consequently, the point to be 14 determined by this Court deserves to be answered in favour of the plaintiff and against the defendants.

18. Accordingly, the first appeal being devoid of merit deserves to be and is hereby dismissed. The interim order passed by this Court on

23.08.2010 is vacated.

19. A decree be drawn up accordingly. KISHORE KUMAR DESHMUKH Digitally signed by KISHORE KUMAR DESHMUKH 18:21:13 +0530 Deshmukh Sd/- (Narendra Kumar Vyas) Judge