Baru Ram & Ors. v. Kewal Singh

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Suresh Goel, Advocate for the appellants. Mr. G. N. Malik, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by defendants. Kewal Singh – respondent filed suit against the appellants. Respondent and appellant no.3 are brothers. Appellant no.2 is their sister, whereas appellant no.1 is their father. Appellant no.1 sold 104 kanals 03 marlas land in suit to appellants no.2 and 3, vide two separate sale deeds dated 19.12.2002 and 13.10.2003. Mutations were also sanctioned on the basis of said sale deeds in favour of appellants no.2 and 3. Respondent challenged the aforesaid sale deeds and mutations alleging that the suit land is coparcenary property. The plaintiff claimed 1/3rd share in the suit land alleging that the plaintiff-respondent and appellants no.1 and 3 are entitled to 1/3rd share each. Appellant no.1 had another son Lal Singh, who died on R. S. A. No. 2099 of 2009 2

27.08.2002. The respondent alleged that Lal Singh died issueless and unm rried. Appellants contested the suit and pleaded that the sale deeds b appellant no.1 in favour of appellants no.2 and 3 and consequent mutatio s are legal and valid. It was denied that suit land was joint Hindu family oparcenary property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Barnala, vide judgment and decree dated 01.12.2005, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed partly by learned Additional District Judge, Barnala, vide judgment and decree dated

25.03.2009, thereby decreeing the plaintiff's suit partly declaring the aforesaid sale deeds regarding 92 kanals 03 marlas land (found to be coparcenary property out of 104 kanals 03 marlas land in the suit) to be null and void and having no effect on the rights of the plaintiff. Consequent mutations have also been set aside to that extent. Defendants no.2 and 3 have been restrained from alienating 92 kanals 03 marlas land. Decree for joint possession of 1/3rd share of 92 kanals 03 marlas land has also been granted in favour of the plaintiff. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Out of 104 kanals 03 marlas land, the Lower Appellate Court has found that 12 kanals land was self-acquired property of appellant no.1 and the remaining 92 kanals 03 marlas was coparcenary property. The said finding is not seriously challenged before me.

Learned counsel for the appellants contended Lal Singh left behind widow Beera @ Veeran and son Lakhbir Singh. However, affidavit filed today in Court by respondent, which is taken on record, reveals that Lal Singh left behind no widow or issue. The contention of counsel for appellants cannot be accepted because no such plea was raised by the appellants in their written statements in spite of the fact that the plaintiff- R. S. A. No. 2099 of 2009 3 respondent specifically pleaded in the plaint that Lal Singh had left behind no wife or issue. The said plea stands uncontroverted in the written statement and is deemed to have been admitted. In any event, no plea at all was raised by the defendants-appellants in their written statements that Lal Singh had left behind widow and son. Consequently, the aforesaid contention does not lie in the mouth of appellants being beyond their pleadings. However, I may hasten to add that if Lal Singh has left behind widow and son, decision in the instant case shall have no adverse bearing against them as they are not party to this litigation.

The next question arises regarding share of plaintiff-respondent in 92 kanals 03 marlas land, which has been proved to be coparcenary property. For this purpose, the following substantial question of law arises for determination in the instant second appeal :- “What is the share of plaintiff- respondent in 92 kanals 03 marlas land, proved to be coparcenary property, out of 104 kanals 03 marlas suit land ?” Learned counsel for the appellants contended that in view of Section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005, even a daughter becomes coparcener by birth in her own right in the same manner as the son and since appellant no.1 Baru Ram now has two sons and three daughters besides his wife, the share of plaintiff-respondent would come to 1/7th only, even if it is assumed that Lal Singh has left behind no widow or issue. There is considerable merit in the contention.

Admittedly, Baru Ram has now two sons and three daughters and also wife of Baru Ram – appellant no.1 is alive. All sons and daughters of Baru Ram are coparceners with Baru Ram and are entitled to equal shares in view of Section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005. As regards share of wife of appellant no.1, paragraph 314 of Mulla Principles of Hindu Law R. S. A. No. 2099 of 2009 4 (Nineteenth Edition) lays down that a wife cannot herself demand a partition, but if a partition does take place between her husband and sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. Where on a partition between a father and sons, the wife is not allotted a share, it was held that she is entitled to reopen the partition. It is thus apparent from the aforesaid enunciation of principles of Hindu Law that wife of appellant no.1 is also entitled to a share in the coparcenary property in the event of partition.